OPINION PIECE – CANADIAN GOVERNOR GENERAL SHOULD SUE TWITTER AND HELP CLEAN UP SOCIAL MEDIA

The disturbing comments published by Twitter about Canada’s Governor General Mary Simon require the same response such defamation would spark against any newspaper should it have distributed such lies – she should sue.

Yes, Canada’s respected 75-year-old first ever indigenous Governor General should sue Elon Musk for defamation, as owner of Twitter, which published these untrue and poisonous comments.

Twitter and Musk made money from them – they attracted eyeballs, which boosted ad clicks, and boosted the social media site’s profile. So, they must be held liable.

Canadian judges have been weak in holding social media responsible for the reputation-damaging lies these sites publish to make money, every hour, minute, second of every day.

It is time that ended. There is a clear path for Mary Simon to sue Elon Musk for publishing defamatory comments saying she is an “old bag”; “beats a shack and caribou meat”; a “treacherous bitch”; and “a worthless piece of meat”.

Shame on Musk and Twitter for publishing this vile nonsense.

It clearly has risked damaging the reputation of Ms Simon, who is – lest we forget – an amazing person. An Inuk born in a village on Ungava Bay, Nunavik, Québec, Simon was Canada’s first ambassador for circumpolar affairs from 1994 to 2004, and Canada’s lead negotiator in the creation of the Arctic Council. She has been Canada’s ambassador to Denmark – handling diplomatic relations for neighbouring Greenland – and a special advisor on the Labrador Inuit Land Claims Agreement.

If any newspaper had published these comments, they would be rightfully castigated and should be sued for defamation.

And that is exactly what should happen to Twitter and its owner Elon Musk.

By doing so, the Governor General could create precedent in Canadian law that create a clear path to legal liability for others whose reputations are shredded by trolls typing ill-informed bile into Twitter, Facebook, Instagram, Telegram and others.

Ridiculously, courts have argued that social media sites enjoy some protection from defamation actions because their editors were unaware of such damaging comments being posted on their web-based services. This needs to be challenged by a Simon suit.

For instance, the Canadian Supreme Court has ruled that social media sites are not responsible for hyperlinks posted by their users – even if they are to comments full of deceit and personal attacks. This is in a widely cited Crooks v Newton case about a BC online message board – https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7963/index.do

But the courts have also found message boards can be held liable for their content. A 2014 case Baglow v Smith at the Ontario Superior Court of Justice found a conservative message board ‘Free Dominion’ responsible for posted comments calling a blogger a Taliban supporter which the board moderators refused to delete. While the court ultimately dismissed a defamation case ruling the attack as ‘fair comment’, it found “the impugned words to have been published” by the message board operators. https://opencasebook.org/casebooks/200-technology-human-rights-and-cybersecurity-winter-2020/resources/3.2.4-baglow-v-smith-2015-onsc-1175-read-excerpts/

And cases can be launched against Twitter and other social media sites in Canada. In the 2021 case Giustra v. Twitter, Inc, a Canadian business owners upset about personal attacks on Twitter secured a ruling from the BC Court of Appeal (BCCA) that Canadian courts could hear cases against Twitter, even though it is based in California.

https://www.libelandprivacy.com/cyber-libel-updates/jurisdiction/giustra-v-twitter-inc/ion

But the real opportunity for Simon here is to demolish the absurd legal presumption that a social media publisher gets a pass when they are unaware of abuse being posted to their website. That is like a journalist in this newspaper writing a bunch of bitter lies in an article, which were not checked out and then published without comment by an editor, asleep on the watch.

If the subject of these lies lawyered up and sued for defamation, any decent newspaper (which in real life would take many precautions to ensure its articles are fair and accurate) would cave, apologize and fire the offending reporter and editor.

And yet, at social media companies such sloppy practice is not just an everyday commonplace, it is part of their business model. They suck billions of dollars in revenue from ads by allowing people to read the unedited and unchecked postings of often ill-informed writers, including the trolls who so appallingly attacked Mary Simon.

For Elon Musk, allowing defamation is policy. It is good business.

And it is time for the courts to recognize this is unfair. Professional media operations, trying to do an honest job, have for years had to fight fast and loose competitors in social media, who just publish any old garbage – and make a fortune by doing so.

Mary Simon can and should challenge this iniquity and force social media to change its ways.

Section 15 of the Canadian Charter of Rights and Freedoms enshrines in the highest law of this land the right to equal protection and equal benefit of the law without discrimination. The Supreme Court of Canada has consistently interpreted this right as protecting substantive equality. Cases have stressed that Canadian law and its government policies must not just treat people in the same way, the principle applies to organizations, like publishers, as well.

In Fraser v. Canada (Attorney General) (2020), the Supreme Court laid down some tests to see if Section 15 applies: “Does the law, on its face or in its impact, create a distinction based on an enumerated or analogous ground? Does it impose burdens or deny benefits in a way that has the effect of reinforcing, perpetuating or exacerbating disadvantage?”

It is as clear as a cold winter day on Ungava Bay that careful professional publishers are being treated differently from sloppy social media giants when it comes to defamation law, and that this difference is unfair, and it breaches Section 15.

Mary Simon has built a career – a life – on fighting discrimination. And now, commanding the highest pinnacle in Canadian society, it is time to take her fight to Elon Musk and his army of trolls, who have been savaging her reputation.

If she wins, she will expose social media to the full defamation liability that these sites should face, and give thousands, maybe millions of people whose reputations are wrecked by social media trolls the chance to secure compensation from the publications that profit from their misery.

Should Simon prevail, social media sites will have to check all comments they publish, as they should. A level playing field will be created in the media sector. And a source of hatred, anger, lies and social disruption will have been removed from Canada and the wider world.