Episode 26: Defamation law in the age of (mis)information

Yves Faguy: Hi, I’m Yves Faguy. In this episode of Modern Law, we explore defamation law in our information age. You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine. In today’s digital age, information has become a powerful tool, capable of spreading rapidly and influencing public opinion like never before. However, this very same power can also be weaponized. Individuals or groups can engage in targeted campaigns of misinformation, they can use online platforms to amplify false narratives and defamatory content, and now there’s the rapid growth of artificial intelligence to worry about, and deep fake technology which present new challenges in defamation. Now, our laws are designed to discourage false claims, and in some circumstances have proven quite helpful in combatting disinformation, but taking legal action is lengthy, it’s costly, and it’s also possible to even use defamation law to shut down free speech.

And so we must always strike a balance between protecting individuals’ reputations and safeguarding freedom of expression. But it’s a balance, obviously, that requires ongoing scrutiny and adaptation to keep pace with the rapidly evolving digital landscape. So to help us navigate these complexities, I’m very pleased to have Justin Safayeni with us today. Justin Safayeni is a partner at Stockwoods LLP, and his expertise lies in administrative and public law, also media and defamation law, and commercial litigation and appeals. Justin’s particular interest is Anti-SLAPP proceedings, a legal mechanism designed to protect individuals from strategic lawsuits against public participation. He’s written and lectured extensively on the topic, and he’s also represented interveners before the Supreme Court, offering his insights and expertise on the leading cases in this area. Justin Safayeni, welcome to the show.

Justin Safayeni: Thank you for having me.

Yves Faguy: Let’s kick this off by just getting to know you a little bit. Tell us a bit about yourself, what got you where you are today. How did you become a lawyer specialized in defamation law?

Justin Safayeni: So I’m a partner at Stockwoods, which is a litigation boutique in Toronto, and do a variety of different things as part of my practice there, but one of the big chunks, if not the biggest chunk, of my practice is in defamation and media law and free expression issues more generally. It’s an area I’ve always been interested in, and I knew coming out of law school that Stockwoods did a lot of this work. And it’s just one of those things that since I joined the firm, I’ve made a concerted effort to try to make it part of my practice and seek out those files.

Yves Faguy: What is it that drew you to that particular topic?

Justin Safayeni: I mean, free expression issues academically for me have always been interesting, and defamation is the vehicle through which a lot of that plays out on a day-to-day basis. So that was always interesting for me. I mean, the other thing that’s – there’s other aspects of defamation law that are pretty fascinating too. I mean, when you’re doing it with media companies you get to work with journalists like yourself and media companies and get a sense of the work and the process that goes into an investigation or a story, which I find fascinating. And when it comes to litigating the depths of a defamation case, you’re often thrown into an area that you know nothing about and have to come up to speed with very quickly. Right? If the story is about policing or the financial services industry, or a mining operation, or whatever, in order to effectively litigate the case, you kind of have to become a bit of an expert in all these random areas of the law or industry or society. And defamation affords a way to learn about all those things while practising in the same  area of law, so I found that attractive as well.

Yves Faguy: So you always wanted to be a lawyer, always wanted to go into free expression issues, since long before you went to law school?

Justin Safayeni: I didn’t want to be a lawyer until I finished undergrad, and then figured out that I definitely didn’t want to work right away. So law school was a natural way to delay that process for a little while, and then while in law school I originally – I'd done business undergrad and I originally thought about being a corporate lawyer, but quickly fell in love with litigation. And from there, defamation was one of the things I found really interesting.

Yves Faguy: And so you probably made up for all that lost time not working since you’ve joined the practice.

Justin Safayeni: Yeah, I think that’s probably fair to say.

Yves Faguy: Defamation and defamation law has been around for a very long time. Right? And, I mean, you’re operating in this environment at what I would think is a pretty interesting time with a very special media environment. Obviously, we see a lot of issues around disinformation or misinformation, depending on how you want to label it, being peddled from all sides for reasons that I guess are very specific to the times we live in. Part of that media, part of that is the political climate. Obviously, there are many forms of misinformation that don’t necessarily take the form of defamation itself, or slander or libel, but tell us a little bit about how defamation law stands up in these times that we live in right now.

Justin Safayeni: It’s a good question. I mean, to put the headline first, I think defamation law is a pretty good tool to deal with disinformation or misinformation, or at least certain kinds of it. And it might be useful if we just go back and remember what the elements are that makes something prima facie defamatory – and it’s a pretty low bar. Right? There needs to be a statement that identifies the plaintiff explicitly or implicitly. That needs to be published in the sense that it’s communicated by the defendant to someone other than the plaintiff. And then it needs to be something that would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. And we can get more into it later, but because defamation is such a low bar, most of the action is in terms of the defences, right? Once the plaintiff has met those three elements, a defendant can then argue liability shouldn’t ultimately be imposed because the words are true, or they fell into the scope of fair comment, or they were made on an occasion of qualified privilege.

So certainly not every situation of misinformation or disinformation, as you say, is going to qualify, but lots of them would, if you just think about those three pretty modest requirements for what makes something prima facie defamatory. I mean, in a sense, your typical textbook defamation case is someone spreading misinformation or disinformation about the plaintiff, provided that the nature of that information lowers the plaintiff’s reputation. That’s kind of what most of these cases are in a sense. So I think the cause of action is pretty well suited to deal with that situation when you go back to what the elements of the tort actually are.

Yves Faguy: We’ve seen it used increasingly as a rather potent legal mechanism. Certainly in the US – and we can get into this because I understand that the law of defamation in the US is quite different than in Canada. We’ve seen it used as a tool in the US courts. It’s been used against Fox News with a rather expensive lawsuit for them. Donald Trump lost a defamation suit. There’s the case of Alex Jones and the Sandy Hook parents of the victims of the school shooting. So we’ve seen all these big headline cases take place in the US, and we're beginning to hear the lawyers liken defamation lawsuits to legal actions against product manufacturers, for example, drawing the analogy that it’s a little bit like enforcing their responsibility for the effects of their speech. How do you see that?

Justin Safayeni: Yeah, I mean, so in the States and in some of those examples that you’ve given, defamation has been the right tool to deal with those pretty high profile incidents of misinformation or disinformation. And I think if similar things happened in Canada, the Canadian law of defamation, which we can get into what some of the differences are, but the Canadian law of defamation would also be well-suited in those kind of situations, including the Dominion voting machine case and the Alex Jones situation. I mean, one thing that is quite different, though, in terms of – you mentioned an analogy to product liability or achieving some degree of behaviour modification, perhaps, from potential defendants. In the US the numbers on the damages are just astronomical. Right? I don’t remember exactly what the Dominion case settled for, but I seem to remember it was north of $700 million or something.

Yves Faguy: Yeah, it was close to 800 million, I think.

Justin Safayeni: Those are just numbers that we – and this, perhaps, is broader to tort law more generally in the States versus Canada, but those are just numbers that we just don't see in Canada. I mean, the biggest defamation award in Canada that I’m aware of, is about $3 million. So it just … It is not necessarily speaking to the law or the tool not being the right one for these cases, but in terms of the practical impact or message sent to the pocketbooks of defendants, you’re just not going to get those numbers in Canada or anywhere close to it.

Yves Faguy: Mind you, those numbers are, as you say, astronomical in the States. I’m not sure the effects have necessarily been all that successful either, because as far as I know Alex Jones still broadcasts some pretty untrue material out there, and even in the case of Donald Trump he sort of commented his case afterwards and almost re-defamed...

Justin Safayeni: Doubled down on it. Right.

Yves Faguy: But what’s the difference between Canada and the US? I mean, we think of Canada’s defamation laws as plaintiff-friendly, do we not?

Justin Safayeni: I think that’s fair to say, certainly compared to the US, for sure.

Yves Faguy: So can you explain that?

Justin Safayeni: Sure, yeah. The biggest difference is that in Canada a plaintiff doesn’t have to prove that the statements in question are false. Right? So if we just think back to those three elements of defamation we talked about a moment ago, identifying the plaintiff – communicating it to one other person, and words that tend to lower the reputation of the plaintiff – nothing in there deals with having to prove the falsity of the statements. Instead, in Canada truth operates as a defence; it’s called the justification defence. So the onus, if the plaintiff has met those three elements, shifts to the defendant to prove the truth of the prima facie defamatory statement, and if they do then they won’t be held liable. In the US, though, that is flipped. As part of their case a plaintiff has to show the statements in question purport to be factual, and that they are false, and that’s, at least in part, a function of the first amendment jurisprudence down there, which is kind of its own beast in terms of protecting expression.

We don’t really have – we have 2(b) of the charter of course but it’s not the same as the American strain of free expression jurisprudence. So from a plaintiff’s perspective, that would make a jurisdiction like Canada more attractive. Right? You don’t have to prove the statements are false. And I’m sure we’re going to talk about this a little bit more, but the situation – [unintelligible 00:12:48] the headline that Canada is a more plaintiff-friendly jurisdiction changes, but it becomes a little more nuanced when you introduce the anti-SLAPP laws into the mix, right? And these are laws that provide defendants with the possibility of having a defamation suit dismissed at an early juncture if certain requirements are met.

Yves Faguy: The notion being that defamation suits can have a chilling effect on suppressing open debate, which is why we’ve got provincial anti-SLAPP laws to target strategic lawsuits against public participation.

Justin Safayeni: Exactly right. So when you layer on those laws, I think it does have some impact in terms of how attractive or plaintiff-friendly Canada is, or at least the Canadian jurisdictions that have anti-SLAPP laws. In particular I’m thinking about the common law anti-SLAPP laws in Ontario and BC, and Quebec has its own slightly different version of anti-SLAPP laws. But when you look at those jurisdictions – and it’s interesting, actually. There was a report that the Centre for Free Expression did recently where they looked at the anti-SLAPP laws in Canadian jurisdictions and compared them to the anti-SLAPP laws in the US jurisdictions and a few other countries around the world as well, and they scored them on different metrics, like what’s the scope of the law, what are the cost consequences, what are the various burdens and onuses on plaintiffs and defendants under each law.

And at least on paper they concluded that Ontario and BC had the most defendant-friendly anti-SLAPP laws of all the jurisdictions they looked at. And as I say, they looked at a number of them in the States as well. So I think that probably makes at least Ontario and BC slightly less palatable for plaintiffs than they might’ve been prior to the introduction of anti-SLAPP laws, but it doesn’t fundamentally change the fact that Canadian defamation law is structurally more plaintiff-friendly than American defamation law.

Yves Faguy: Now, there was a case that was rendered very recently by the Supreme Court of Canada which dismissed a defamation action using anti-SLAPP law in BC. It did so by highlighting the public interest in protecting counter speech. This is the Hansman decision, and you’ve had some participation in it, have you not? And tell us why it’s an important decision.

Justin Safayeni: Sure, yes, this is the Hansman and Neufeld case that was released late May of this year. And yeah, just by way of disclosure, I represented the Centre for Free Expression as an intervener in that case, but obviously I’m here just giving my own views and not purporting to speak on their behalf. It was a fascinating case in many ways, and it’s an important one for a few reasons. And maybe to appreciate why, it might be worth just briefly going through the structure of what the anti-SLAPP test is and how it’s supposed to work. And remember, these are brought by defendants to try and get a plaintiff’s case thrown out. The onus starts on the defendant to show that the expression at issue that gave rise to a lawsuit relates to a matter of public interest.

Yves Faguy: So this lawsuit centred around critical remarks made by a certain Barry Neufeld, who was a public school board trustee, about an education policy to foster inclusion and respect for students who faced discrimination in school. He was criticized by another person and Glen Hansman, also, I understand, a figure of import in the community, a teacher and a former president of the BC Teachers Federation. And he basically, as I understand it, said that Neufeld’s views were bigoted and transphobic. 

Justin Safayeni: Right.

Yves Faguy: And Neufeld accused Hansman of defaming him.

Justin Safayeni: Correct. So, yeah, that’s the background in that case, and you’re absolutely right that it was framed by the Supreme Court as counter speech, right? So the idea was that the plaintiff made some initial expression, to many a controversial expression, on these social issues, and then there was counter speech or counter expression by the defendant that labelled the plaintiff, as you said, and that’s what gave rise to the underlying litigation. That’s the factual backdrop of the case, and then when you look at the structure of the test, which I think is important to recognize the importance of the Supreme Court's decision here, the first thing that happens is this defendant having to show that it’s on a matter of public interest. That’s a low bar, most cases don’t turn on it, it’s a very broad and generous approach to that question. And then if the defendant can show that, then the onus flips to the plaintiff to show two things. First, they have to clear a merits threshold, showing that their case has sufficient merit.

That’s not a very onerous standard; a lot of time and energy gets eaten up in anti-SLAPP motions on this merits threshold issue, and we can come back to that. But that’s the first thing they have to show, if there’s a basis in law in the record for them to win on the merits. And then after that, the plaintiff also needs to show that the harm they have suffered or that they’re likely to suffer is sufficiently serious that the public interest of allowing the action to proceed outweighs the public interest in protecting the expression at issue. That’s sometimes called the public interest weighing stage, and that’s what the courts have said is really supposed to be the crux or the core of the anti-SLAPP analysis, and most cases will turn on that last public interest weighing part of the test. And Hansman is really a case that focuses on that public interest weighing and offers some guidance on how to conduct that weighing.

It talks about other elements of the test, too, but that’s the meat of the decision, is talking about how we do this public interest weighing. And two points in particular jump out from the decision when it comes to that. First, the court says, look, when we’re doing this weighing, we’re going to be prepared to look at whether the defendant’s speech was intended to defend vulnerable or marginalized groups. Right? And in the Neufeld case, the defendant was speaking out in response to the plaintiff’s speech that he perceived to be potentially damaging to transgender individuals, amongst others. And so while there can be other elements in the weighing analysis that can tilt the scales one way or another, all else being equal, what we’re hearing from the court in Hansman is expression is designed to protect the vulnerable or marginalized group, is expression worth protecting that militates in favour of dismissing the lawsuit? It’s not to say that’s always going to be the result, but it’s a factor that will weigh on that side of the scale, so to speak. And that’s important, and that’s something new.

The second thing that the court says in this case which I think is important, it says we're not going to take into account when it comes to the weighing analysis any claim that there’s a potential chilling effect on the plaintiff. And I think you said this earlier, Yves, but the idea of a chilling effect is really central to anti-SLAPP law. Right? The whole raison d’etre of anti-SLAPP laws is to guard against an outcome that lawsuits are going to chill the ability of the defendant or others in a potentially similar situation to speak out on issues of public importance. We’re going to try and avoid that negative chill on free expression through these anti-SLAPP motions. That’s the whole ballgame. But what the court below in the Hansman case had accepted was a very different version of the chilling effect. The court below it said, actually, the chilling effect in this case militates in favour of letting the plaintiff’s case continue, because if he was not allowed to sue for the counter speech that came his way, then that would chill his ability to say controversial things in the first place. That’s a very novel, to put it mildly …

Yves Faguy: Argument?

Justin Safayeni: Take on the chilling effect. Yeah, and it’s one that the Supreme Court expressly rejects in no uncertain terms. So when we’re doing this public interest weighing analysis, what weighs in favour of the plaintiff is the harm or the likely harm they’ll suffer as a result of the expression, but the chilling effect has nothing to do with it. That’s not part of the equation when it comes to the plaintiff’s end of the scale, and the court’s very clear on that.

Yves Faguy: There’s something else that’s interesting in that decision, though, which is the court writes that the closer the expression lies to the core values of 2(b), so freedom of expression, including truth seeking, participation and political decision making, and diversity in the forms of self-fulfillment and human flourishing, the greater the public interest in protecting it. That sort of infuses charter values into the discussion, does it not?

Justin Safayeni: It does, it does. And it builds on what the court has said in its previous – there's a previous pair of cases dealing with anti-SLAPP laws from Ontario back in 2020 where the court kind of opened this door, so to speak, and said that not only the charter values underlying section 2(b), which is what you just referenced, but charter values more generally, including those underlying, for example, the right to equality. That is all legitimate to be taken into consideration at the public interest weighing part of the test. And I think … I’ve seen and heard some criticisms of the Hansman decision for the court essentially passing a value judgment on the worth or the quality of speech. And … Look, I mean, I think that’s correct, I think that’s what the court is doing when it comes to the public interest weighing analysis enhancement.

But it’s also inherent in the very structure of anti-SLAPP laws. When we’re looking at weighing what’s the value in protecting this speech, there’s no way to run from assessing the quality of the expression. Implicitly or explicitly the court needs to make an assessment of whether this is the kind of expression they think is worth protecting. And I don’t think that the anti-SLAPP paradigm works without some sort of value judgment, and I’d rather have the courts address that head on and do so transparently, which I think is what we see in the Hansman decision.

Yves Faguy: And I understand that, I’m just wondering whether down the road there’s not some potential for unintended consequences of basing judgments on the quality of the speech, based on charter values. Whether that can step over too many lines at one point and get overly broad, to the point where suddenly we are perhaps curtailing free speech too much.

Justin Safayeni: Well, I mean, the development of the law of defamation in Canada has always been … It’s distinct from the court’s free expression constitutional jurisprudence, but it’s always been developed in a way that the court says is in line with section 2(b). That includes the development of responsible communication defence, there are tweaks to the fair comment defence, etcetera, etcetera. And I think this is kind of keeping in line with that. And frankly, I mean, when it comes to assessing the quality of the expression, which, as I say, I think is unavoidable, in my view at least I think the 2(b) jurisprudence and the idea of looking at whether the speech at issue falls near the core of what 2(b) is designed to protect, or at least advances the same purposes and values 2(b) is designed to achieve, is a pretty good goalpost or measuring stick for at least starting the analysis.

I think the charter values, as one of the tools, not the only tool but one of the tools to assess the quality of the expression, is actually a useful starting point. But that’s not to say that if speech is unconnected to those values underlying 2(b) that it’s not going to be worthy of protection, it’s just one of the things the court will look at when calibrating that end of the scale. And in my view, that’s – it’s appropriate and it’s in keeping with the larger trend of the court developing the law of defamation in a way that is consistent with charter values.

Yves Faguy: And so in this particular case you think that the court struck the right balance.

Justin Safayeni: In this case I do think the court struck the right balance. I mean, I agree with your assessment, Yves, that in a sense – it's always easier to say this once you see the final decision, but in a sense this was an easier case, because at least on the facts as found by the court, we have a situation where the plaintiff hadn’t really suffered any harm. His speech wasn't chilled, he kept making the same kind of statements even after the defendants spoke out against him, his career wasn't impacted, he ran again and was re-elected for his position as school trustee. So that end of the scale was – there was not a lot of compelling arguments on that side. And on the other side you have the expression at issue being the kind of thing that the court felt was worthy of protection for a number of reasons, including the fact that [unintelligible 00:27:54] speak out in favour of a vulnerable group. So on the facts as found by the court, I think the balance certainly favoured the outcome of having the defamation case dismissed.

Yves Faguy: So you represent a lot of media companies in your practice?

Justin Safayeni: Correct, yes.

Yves Faguy: So how have they been using anti-SLAPP legislation, and how do you consider anti-SLAPP laws to have had – have they had a positive or a negative effect on freedom of expression?

Justin Safayeni: Overall I think it’s been a positive effect on freedom of expression, because it is – the anti-SLAPP motions are an important and at least in the right case it could be a very powerful tools for defendants to avoid years of litigation on the long road to a trial. And as you say, media companies have successfully relied on anti-SLAPP laws, and for them I think it's not just a question of saving financial resources by having cases dismissed, it’s also a matter of ensuring that the journalists and editors and reporters are able to focus on their work. Right? For these people to get dragged into lengthy litigation that goes on for years can be a huge drain on their time and energy.

Yves Faguy: I mean, is it fair to say that defamation laws, that they were conceived with primary the media in mind?

Justin Safayeni: I’m not sure if they were conceived with primarily the media in mind, I think that they have developed in a way that’s more responsive to the media as a particular defendant. And I’m thinking in particular of the responsible – what's often called the responsible journalism defence by shorthand, or though it can apply to people other than journalists as well. That is a defence that was really pushed for, spearheaded by the media, and I think the media’s concerns were front and centre. So it’s certainly something that has been taken into account in the development of defamation law. For sure. But for the anti-SLAPP situation with media defendants, I do think it’s important because it can prevent – I think in a real way it can operate to help prevent a chilling effect. Right?

If you got a journalist who’s stuck in litigation for five years because they wrote a story, I mean, next time they may just hold back on a controversial issue, or not write that story to avoid that. The anti-SLAPP process isn’t a full answer to the concern, but I think it does mitigate it, right? If people who are writing their stories understand, look, there is a way to, if the lawsuit comes along, there is a way relatively quick and painless compared to the alternative, at least in some cases, to have those lawsuits dismissed without going on the full road to trial.

Yves Faguy: Yeah, and in an age of newsroom cutbacks and layoffs, this is probably almost necessary.

Justin Safayeni: For sure. Any means of resolving litigation more expeditiously and less expensively I think is welcome.

Yves Faguy: I think the issue with anti-SLAPP legislation is that we want a fairly quick process that’s going to avoid drawn out litigation that can go on for years, at the same time we still want to make sure the case has some merit to it, and whether it should move forward. So how is that playing out, and, I mean, how long do these anti-SLAPP motions actually take to litigate?

Justin Safayeni: So, I mean, it’s a very good question, and it is – the tension is real and it’s a difficult one to resolve. I mean, it’s … And you’re quite right, it’s kind of at the heart of the whole anti-SLAPP regime. On the one hand these are designed to end litigation quickly so defendants can get on with their lives. And so for that to happen you necessarily have to deprive a plaintiff from having their full day in court on the merits as they would in the ordinary course of civil litigation, and courts are instinctively wary of doing that, and I think they're even more instinctively wary of doing it at an early stage in the process. And anti-SLAPP cases often are brought at a very early stage in the process. They can technically be brought even before the close of pleadings. So there is this problem, and the practical way that the tension plays out in many cases is that these motions have become somewhat unwieldy. Right?

They were designed to be, in the words of the Supreme Court cases from 2020, a summary screening tool. That is not how they are treated in most cases. There’s something – if you look at the records on these cases it’s something closer to summary judgment motions, often. And on the one hand, it’s easy to be critical of counsel for pursuing it that way, on the other hand given the stakes from each side – the plaintiff is fighting for the right to continue their case, period, the defendant is fighting the ability to be relieved of the litigation completely – these are huge stakes, and there are significant potential cost consequences as well, which we can come to. But it’s not difficult to understand why lawyers might be tempted to leave very few stones unturned when it comes to putting their legal arguments and factual record together for the court.

Yves Faguy: Lawyers do not like to leave stones unturned.

Justin Safayeni: No, right? There’s a natural kind of if only I had done that maybe it would’ve been different that I think we all wrestle with. And when it comes to the anti-SLAPP situation, I think we see that often on steroids. And courts have become very frustrated with this. Our Court of Appeal in Ontario in particular has issued recently a pretty scathing decision just saying these motions have become something very different from what they were intended to be, and trying to send a strong message to the bar, I think, that these should not be litigated as if they were summary judgment motions. We don’t need to get into the granular elements of the merits, for example, which is often the piece that consumes the most time and energy, even though few cases turn on it, given that it’s not a very high bar for the plaintiff to meet that modest merits threshold.

And courts are sending the message that, look, if you think your case is right for an anti-SLAPP, you basically better be able to convince us in most cases that you should win on the public interest weighing. That should be where your focus is, and that’s going to be what drives the results in most cases. I think it remains to be seen whether these cries for a reformed approach will be heeded by the bar or how long it takes for a bit of a culture shift on these motions to happen.

Yves Faguy: How would they reform it?

Justin Safayeni: Well, I mean, I think there’s a few things. I think first of all you probably have to be a little bit more selective in the cases that might be eligible for bringing an anti-SLAPP motion. And I don’t mean eligible in the sense that there would be a legislative bar, but I mean eligible in the sense of counsel exercising their judgment and discretion as to the odds of succeeding on an anti-SLAPP motion. Not every case is going to be right for an anti-SLAPP, and I think we went through a period where –

Yves Faguy: Everybody was trying it.

Justin Safayeni: Everybody was trying it in every case. And for a while – and I don’t know if it’s still this way in Toronto they wouldn’t even give you an anti-SLAPP motion date until you went to a case conference and at least at a preliminary level convinced a judge that your case was right for it, because the court was just getting flooded with these things. So it probably takes a bit better judgment on the front end or a bit more careful judgment on the front end about whether a case is a good candidate for it. And then for the cases that are good candidates for it, and it’s a related but I guess a distinct point, when counsel are thinking about how to argue the case or how to focus the case, I think looking at that final stage, the public interest weighing should really be the key in most cases.

And getting bogged down in the merits, which is really what drives, in most of these, the time and expense and cost of bringing one of these motions, if you’re essentially doing a mini-trial on the merits, should be, again, in most cases, secondary to putting together the record on the arguments on the public interest weighing. Which itself could be a task, but in most situations is not going to be as detailed or as much effort as doing the merits, because the merits of these cases is usually what is the main driver of making them complex and expensive.

Yves Faguy: I’d like to ask you a little bit, just turning your gaze to the future a little bit, where do you see the law of defamation going in the next few years. Again, we spoke a little bit about the context – I might invite you to consider too also the fact that we have all these internet laws that are under consideration, and online harms, law proposals, but I sometimes wonder if they don’t fail to grapple with a certain reality that our right to free expression protects misinformation in many ways, and disinformation. There’s no law against it unless it falls within an exception, such as defamation or perjury, or hate speech. I’m wondering if the law of defamation as our lawmakers are beginning to consider how to deal with this issue of misinformation, online speech and whatnot, is there a role for defamation law in there somewhere?

Justin Safayeni: So, I mean, it’s a very good question. I think we have to keep the two ideas somewhat distinct, right? I mean, a lot of the proposals that are coming out for dealing with online harms and etcetera are really – I mean, they’re not criminal but they are regulatory in the sense that it’s the state exercising a degree of oversight and enforcement of consequences triggered by the state for certain types of online expression or speech. And as I understand it, I’m not sure if the exact details of all that have been worked out yet, but some of what’s under consideration. The defamation context is, you know –

Yves Faguy: Private.

Justin Safayeni: It’s private, exactly, so it’s a bit of a different beast in that respect that doesn’t quite have the same state [unintelligible 00:39:57] of saying what you can and what you can’t do. It’s a private consequence for doing something where the court says you’ve wronged somebody else. But I do think moving forward both the state responses to online speech and regulating online speech is an area to watch, and it’s one – and that could be a subject of its own podcast. I mean, that’s one that raises a lot of tricky issues. And on the defamation side, I mean, one of the things that I think is going to be interesting is how the defamation laws adapt and apply to AI-generated content. Right? Because there’s going to be – and it hasn’t happened yet, but it’s not impossible to imagine situations where something that is published by one of these AI programs ends up being seen as defamatory and then there’s all sorts of questions around who exactly is responsible for that. It’s not –

Yves Faguy: Is it the prompter or is it the -?

Justin Safayeni: The program, what are the inputs that have gone into the program to generate that result? I think these are all issues that have not been worked out at all, but given the speed at which these AI programs are coming to dominate or at least influence a number of different industries, I can’t imagine it’s too long before some of this comes to the fore.

Yves Faguy: Yeah, I mean, we actually have journalists – we have articles in – you know, news articles that have been written by artificial intelligence now.

Justin Safayeni: Right, which is just –

Yves Faguy: In some cases, so –

Justin Safayeni: Which is well –

Yves Faguy: I don’t know who you would sue for that. I guess you would sue the outfit, but …

Justin Safayeni: Right, and there’s a question about what – you know, in different contexts there could be a different web of people potentially responsible, certainly the people who have put their name on it and get it out there. I mean, I think that will not change, but whether you can go beyond that into others responsible for the program or the data that the program was using, or etcetera, I think is … It raises some interesting questions.

Yves Faguy: So that’s probably – you think that’s the area where we’re going to see the most development in years to come?

Justin Safayeni: I think it’s an area that’s probably the most unexplored to date, and I do think it’s one that we’re probably – people who practice in the defamation area are going to have to get up to speed with pretty soon as this ends up playing a bigger and bigger role in our day-to-day lives, the use of AI in all sorts of ways.

Yves Faguy: You said you wanted to – and it's probably good advice – to keep separate these ideas of how the state regulates speech or regulates online content, versus this notion of private action to enforce or to police the spreading of untruths. I still wonder, though, is there not – is it possible – is it not impossible to completely separate the two? And my thinking here is that you have the state, which as far as I can tell for years has essentially been sort of divested itself from the responsibility of managing what is said online and has sort of outsourced it to the large media platforms. They want them to moderate the content. But at the same time, I’m wondering, as we explore a legislative framework to deal with online spreading of information, how much thought should we be giving to leaving open a space for private actions such as actions in defamation?

Justin Safayeni: I’m going to be somewhat careful here, because I’m not super familiar with at least the latest proposals for the online harms legislation or the framework being put forward for that. But I think you’re right that divorcing the private and the public action completely is perhaps too bright of a line to draw. And my recollection at least is that for some of the proposals that were being explored for the online harms reduction, it was actually in some ways a mix of both. It was a process or a framework that the government put into place and would ultimately enforce, but it was triggered by or at least could be triggered by private complaints. Right? So that there was a still a role for individuals to come forward with particular problems or complaints they had. And I think you’re – I think there’s a role for private actors in that sense, and I think more generally whether a space should be carved out for defamation, in a sense that assumes that people can access the courts to bring those proceedings, when the reality for many people is very different. Right?

I mean, just having the time, resources and energy to bring a defamation lawsuit forward is not going to be available to most people. And so in terms of access to justice or at least access to some sort of remedy, I think we always have to be careful of striking the right balance, but affording some sort of framework where it is – relief is more readily available upon the filing of a complaint or upon taking certain action pursuant to a statute rather than doing the full lawsuit. I do see the value in that. I think we need to be careful not to overstep, and the devil is in the details of these kind of things, but from a practical perspective the purely private route is not going to be on the table for a lot of folks.

Yves Faguy: I think that’s a good place to stop. Justin Safayeni, thank you so much for joining us for this talk. It was very informative, and thanks for coming on.

Justin Safayeni: Thank you for having me. I really enjoyed it.