An eagerly anticipated media law decision from the Ontario Court of Appeal confirms what may seem to be an obvious legal proposition: the publication of a newspaper article online is treated the same as the print version for the purposes of notice and limitation periods in a civil action – in other words, time periods governing libel actions do not start afresh each day that an online article is online.
In Ontario, complainants in libel against a newspaper or broadcaster must follow strict statutory requirements as a condition precedent to commencing action.(1) In John v Ballingall(2) the plaintiff Darren John, a rapper who performs under the name Avalanche the Architect, sued the Toronto Star and one of its reporters for libel arising from the online publication of an article titled "Rapper says death threat just a lyric".(3) The article was about criminal charges laid against John for uttering threats to cause death or bodily harm and criminal harassment stemming from his rap song "Got Yourself a Gun". The article included an interview with John; 16 months after publication, John emailed the reporter, complaining about the online version of the article and threatening legal action, and a few weeks after the email the libel action was commenced.(4)
The defendants brought a motion on a point of law to dismiss the action on the basis that it was out of time for failure to comply with the statutory notice and limitation periods under the Libel and Slander Act. The question before the motions judge was whether the Libel and Slander Act applied to the newspaper's online edition. If it did, the plaintiff did not dispute that this holding was fatal to the claim. The motions judge granted the dismissal order after concluding 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.(5)
The basis for the plaintiff's argument that the Libel and Slander Act did not apply was his interpretation of a 2013 Ontario Court of Appeal decision.(6) In Shtaif v Toronto Life the court of appeal held that whether a claim arising from the internet version of a magazine article is subject to the notice and limitation provisions in Sections 5(1) and 6 of the Libel and Slander Act is a genuine issue requiring a trial and could not be dismissed on summary judgment. In Shtaif the court rejected the notion that the US single publication rule applies in Ontario. As described in Shtaif, the single publication rule holds that the plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold. In other words, the entire edition of a newspaper, book or magazine is treated as a single publication when it is first made available to the public and later distributions are relevant to the assessment of damages, but do not create a new cause of action or a new limitation period.
The Ontario Court of Appeal decision in Shtaif caused some ambiguity in the law with respect to the question of whether the Libel and Slander Act applies to online versions of newspaper articles and broadcasts. In John, the court of appeal clarified any ambiguity by holding that Shtaif was distinguishable on its facts including inter alia, the fact that it involved a summary judgment motion involving evidence – and not a motion on a question law – where discoverability was at issue.(7) The court of appeal in John re-affirmed one of its earlier decisions, pre-Shtaif, for the principle that "a newspaper is no less a newspaper because it appears in an online version".(8) The court of appeal also rejected the plaintiff's misinterpretation of the multiple publication rule. This concept provides that when an alleged libel is republished across different mediums, including the Internet, those republications are treated as distinct libels. It clarified that in Shtaif, the court rejected the notion that the limitation period for a suit about an online magazine article starts to run when the plaintiff becomes aware of the printed version – this was the basis for the conflicting evidence on discoverability in that case – but that decision does not mean that each day of online publication grounds a new cause of action; rather, any limitation period based on discoverability runs from the point when the internet defamation is discovered.
The decision in John disposes of the absurd notion in Ontario that a plaintiff can get around the statutory time periods for bringing a libel action against a newspaper for the online version of the same article in the print publication.
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(1) Written notice of an intended action shall be delivered to a newspaper or broadcaster within six weeks of the alleged libel coming to the plaintiff's knowledge and the action shall be commenced within three months after the alleged libel has come to the plaintiff's knowledge, see Sections 5(1) and (6), Libel and Slander Act 2002, SO 2002, C24. If the internet article is not found to be a newspaper or broadcast, the limitation period of two years under the Ontario Limitations Act applies.
(4) The day after the online publication was published, John sent the newspaper a 'factual error' message through its website complaining about the article. However, this email was found not to be proper 'notice' because there was no direct or implied assertion that the statements in the article were libellous or that the appellant contemplated legal action.
(7) Shtaif also involved the live issue of whether the magazine article was broadcast in Ontario due to the server being in Texas; the question of a 'broadcast' as defined in the Libel and Slander Act is a separate question that is not at issue in John, which is strictly limited to a 'newspaper' as defined in the Libel and Slander Act.