Libel & Slander Act v The Internet

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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Ontario’s Libel and Slander Act[1] contains certain notice and claim requirements and deadlines which, if not followed, will act as a bar against any potential action for defamation.  In particular:

  • Section 5(1) provides that no action for libel in a “newspaper” or in a “broadcast” lies unless a plaintiff, within six weeks after the alleged libel has come to the plaintiff’s knowledge, gives written notice to the defendant.
  • Section 6, for its part, states that an action for a libel in a “newspaper” or in a “broadcast” must be commenced within three months after the libel has come to the knowledge of the person defamed.

It is relevant to note that if the Act applies then the clock starts running when the alleged libel has come to plaintiff’s knowledge and not the date of publication.  The case law also confirms that the above requirements are equally applicable to media and non-media defendants as follows:[2]

[…] the word defendant in conjunction with the words “newspaper” and “broadcaster” should be given a large and liberal construction that includes within their ambit “all those who have some responsibility for the appearance of a libel in a newspaper or broadcast” (emphasis added).  In addition to reporters and other authors employed directly by the newspaper, he states:

[The term] could also include freelance authors or persons who submit letters for publication or telephone in comments for a broadcast, or appear as a guest in a broadcast program, but this is more tenuous.

The Problem

An outstanding issue is whether and what online postings are governed by the Act. In other words, whether posting/publishing something on the internet is a “newspaper” or “broadcast” as defined in the Act.

In the 2002 Court of Appeal decision in Weiss v. Sawyer[3], there was conflicting evidence about whether an alleged defamatory letter was published over the internet.  The defendant’s letter was a book review, which the author of the book claimed was defamatory, and was emailed and faxed to the publisher of the book and other newspapers and periodicals.  Assuming it was published, Armstrong J.A. held that he thought the word “paper” in s. 1(1) of the Act was broad enough to include a newspaper published on the internet and therefore, the notice requirement in s. 5(1) of the Act applied.[4]  Armstrong J.A. did not decide whether the internet publication was also a “broadcast” as there was no evidence to make that determination.

The Court of Appeal further addressed this issue in the 2013 decision of Shtaif v. Toronto Life Publishing Co. Ltd.,[5] which concerned a magazine article posted on the magazine’s website.  The motion judge ruled that the Act did not apply to the internet version of the article.  This motion decision was appealed and the Court of Appeal dismissed the appeal while sidestepping the key question about the Act.  The Court held that the question of whether the internet version of the article is a newspaper published in Ontario or a broadcast from a station in Ontario was left for trial (which never took place).  Laskin J.A. wrote:[6]

“I am not satisfied that the evidentiary record before us is sufficient to decide these questions, which have broad implications for the law of defamation.”

Laskin J.A. went on to state that the issue of interpreting the Act in light of the internet is a “difficult one” because the:[7]

[…] Act was drafted to address alleged defamation in traditional print media and in radio and television broadcasting.  It did not contemplate this era of emerging technology, especially the widespread use of the internet.  The application of the Act to internet publications will have to come about by legislative amendment or through judicial interpretation of statutory language drafted in a far earlier era. [emphasis added]

Thus far, there have been no legislative amendments to speak of, nor do there appear to be any on the horizon.

What We Know

In a more recent 2016 lower Court decision of John v. Ballingall et al., Trimble J. briefly described a number of other decisions that have impliedly held that the Act does apply to:[8]

  • an internet publication or broadcast involving an internet re-broadcast of a radio interview [see Janssen-Ortho Inc. v. Amgen Canada Inc., (2005) CanLII 19660 (Ont. C.A.) [9]];
  • a Toronto Sun internet broadcast, web blog posting and paper edition [see Canadian Union of Postal Workers v. Quebecor Media Inc., (2016) ONCA 206 (Ont. C.A.)[10]]
  • a television broadcast, radio broadcast, internet broadcast and internet article [see World Sikh Organization of Canada v. CBC, 2007 CarswellOnt 7649 (SCJ)[11]]

The Ballingall decision concerned an article published on the Toronto Star website and Trimble J. confirmed that “the weight of jurisprudence favours the view that an internet posting or broadcast is covered by the Libel and Slander Act, unless specific facts dictate otherwise” and, therefore, upheld the motion judge’s dismissal of the claim given the Act’s requirements were not satisfied.[12]

In St. Lewis v. Rancourt[13], the alleged defamatory posts appeared on a University of Ottawa professor’s personal blog.  The posts were held to be defamatory but the author asserted that the plaintiff failed to service her notice of libel as required under the Act.  This argument was rejected by the Ontario Court of Appeal, but the door was not slammed shut.  Paragraph 8 of the decision states:

The limitation period, however, applies “only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario”: Acts. 7.  The burden of proof was with the appellant to establish that the blog posts fell within this definition under the Act. He called no evidence to establish that they did. The respondent was prepared to call expert evidence to address this issue, but, as the appellant did not lead any evidence, the respondent did not do so.

Conclusion

Therefore, clarification as to the applicability of the Act to different forms of online materials (articles, postings, videos, social media posts, audio etc.) is still required by the Courts and/or the legislature.  For example, the cases above have generally addressed the issue of online defamatory remarks posted or re-posted on the website of mainstream media entities.  What about personal blogs?  What about postings on social media?

Therefore, when faced with defamatory content online it is best practice to proceed as though the Act applies and comply with the notice and filing requirements therein.  Failure to do so may result in a plaintiff’s claim being dismissed should the Court eventually determine that the method of posting constitutes a “broadcast” under the act.

[1] Libel and Slander Act, R.S.O. 1990, c. L.12 <https://www.ontario.ca/laws/statute/90l12>

[2] Janssen-Ortho Inc. v. Amgen Canada Inc., (2005) CanLII 19660 (Ont. C.A.), <http://canlii.ca/t/1kxt3> at paras 4 & 35 [“Janssen”]

[3] Weiss v. Sawyer, (2002) CanLII 45064 (Ont. C.A.), <http://canlii.ca/t/1cpmn> [“Weiss”]

[4] Weiss at para 24

[5] Shtaif v. Toronto Life Publishing Co. Ltd., (2013) ONCA 405 (Ont. C.A.), http://canlii.ca/t/fz6kd [“Shtaif”]

[6] Shtaif at para 24

[7] Shtaif at para 20

[8] John v. Ballingall et al., (2016) ONSC 2245 (Ont. S.C.J.), <http://canlii.ca/t/gp416> [“Ballinger”]

[9] Janssen

[10] Canadian Union of Postal Workers v. Quebecor Media Inc., (2016) ONCA 206 (Ont. C.A.) <http://canlii.ca/t/gnps6>

[11] World Sikh Organization of Canada v. CBC, (2007) CarswellOnt 7649 (Ont. S.C.J.)

[12] Ballinger at para 16

[13] St. Lewis v. Rancourt, (2015) ONCA 513 (Ont. C.A.), <http://canlii.ca/t/gjxxd>