2022 December 19
Thorpe v. Boakye, 2022 ONSC 7176
The Ontario Superior Court of Justice dismissed a summary judgment application by the defendant Google LLC ruling that a full discovery and trial are required to resolve issues of fact and law relating to false and negative reviews posted on Google’s online applications, “Google Maps,” “Google Search” and “Local Reviews.” All of the other defendants had previously been noted in default. The Court held that the evidence in this summary judgment motion raised a genuine issue as to whether Google – as an online “broadcaster” within the meaning of the Ontario Libel and Slander Act – published the content of the reviews posted on its “Local Reviews” platform. The Court rejected Google’s argument it was protected by the decision of the Supreme Court of Canada in Crookes v Newton, 2011 SCC 47, stating that decision “was based on the particular nature of hyperlinks, which do not give the host of the internet platform where they appear control over the content of the third party material to which the links provide its users access.” “[Crookes v Newton] should not be applied broadly to extend immunity to publishers for third party content over which they are able to exercise control.” In this case, Google “created the platform on which the allegedly defamatory reviews were posted and admits that it had the power for remove them.”
The Court referred to the decision of the High Court of Australia in Fairfax Media Publications Pty Ltd. v Dylan Voller; Australian News Channel Pty Ltd. v Dylan Voller [2021] HCA 27. In that case, the defendant news media companies were found to be liable for the publication of allegedly defamatory “comments” that were posted on their respective public Facebook pages by third parties. A majority of the High Court of Australia rejected the news media arguments that for a person to be a publisher, they must know of the relevant matter and intend to convey it. “Each appellant, by creating a public Facebook page and posting content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users. The appellants were therefore publishers of the third-party comments.”
In this context, the Ontario Superior Court of Justice held “[t]here is a genuine issue of law in the present case as to whether Google, by continuing to provide a platform for the defendants’ defamatory review after receiving notice of them, either in the notices served on Google Canada, or on Google at its offices in the U.S., or in the Statement of Claim subsequently served on it, published the content of the reviews that continued to appear on Google’s platform until Google removed them”.