On July 7, 2017, in John v. Ballingall, the Court of Appeal for Ontario (Court) confirmed that an online newspaper is a “newspaper” within the meaning of the Ontario Libel and Slander Act (LSA), attracting the same libel notice requirements and short limitation period protections as a print newspaper. In so doing, the Court affirmed the interpretation of the LSA in line with changing technologies.

This decision has significant implications for the law of internet defamation, including for newspapers and other media who publish content online.

Blakes represented the defendants, the Toronto Star and Mr. Alex Ballingall.

BACKGROUND

In 2013, the plaintiff was charged criminally in relation to a rap song he wrote, called “Got Yourself a Gun”. The Toronto Star (Star) published a newspaper article about the criminal proceedings on the Star’s website and in the print version of the newspaper in December 2013. After reading the article online, the plaintiff complained to the Star about the accuracy of the headline, but did not deliver a libel notice within six weeks or commence an action within three months as required by the LSA. In April 2015 — more than 16 months after publication — the plaintiff delivered a libel notice and sued over the online article.

The defendants brought a motion to strike the plaintiff’s claim on the basis that it was statute-barred by the limitation periods in the LSA. By imposing a regime of short limitation periods and libel notice requirements for alleged libels in a “newspaper” (the standard limitation period for an action is two years), the LSA provides important protections for freedom of the press, limiting libel actions that can have a chilling effect on publications in the public interest. The LSA defines “newspaper” as “a paper containing public news, intelligence, or occurrences…printed for distribution to the public and published periodically…at least twelve times a year.” The only issue before the motion judge was whether the LSA applied to the online version of the newspaper, or whether the usual two-year limitation period applied.

Justice Trimble of the Ontario Superior Court of Justice held that the LSA applied to the online version of the newspaper article. In doing so, he followed a 2002 decision of the Court of Appeal in Weiss v. Sawyer (Weiss) that held that “a newspaper is no less a newspaper because it appears in an online version”. The plaintiff relied on a more recent (2013) Court of Appeal decision, Shtaif v. Toronto Life Publishing Co. Ltd. (Shtaif), to argue that the LSA did not apply to online newspapers. In that case, the Court of Appeal deferred to trial the issue of whether the online version of Toronto Life was a “newspaper” or “broadcast” for the purposes of the LSA. Justice Trimble held that Shtaif was distinguishable and followed Weiss to dismiss the plaintiff’s claim. The plaintiff appealed to the Ontario Court of Appeal.

COURT OF APPEAL DECISION

In a unanimous decision, Justice Benotto (Justices Doherty and Trotter concurring) agreed with Justice Trimble and the reasoning in Weiss “that the word ‘paper’ in the definition of ‘newspaper’ is not restricted to physical paper.” The Court held that interpreting the legislation in this manner was consistent with the principles of statutory interpretation, “which are flexible enough to achieve the intent of the legislature in the context of evolving realities”. The Court went on to say that “Now that newspapers are published and read online, it would be absurd to provide different regimes for print and online versions.” Like Justice Trimble, the Court held that the decision in Shtaif was distinguishable and concluded that “the LSA applies to the online version of the article.”

The Court also rejected the argument that a new cause of action accrues for every day the defamatory words are published online, thereby re-starting the limitation period. Rather, the Court held that the limitation periods in the LSA begin to run “when the libel has come to the knowledge of the person defamed”.

The Court did not address whether, or how, the LSA applies to “broadcasts” online.

IMPLICATIONS

This case is significant for newspaper publishers and other media who meet the definition of “newspaper” in the LSA, confirming that libel claims for newspaper articles published online are subject to the same protections and limitation periods as articles published in print. More broadly, the decision reflects the Court’s acceptance of the need to interpret legislation in line with changing technologies. In this case, the Court interpreted the LSA to reflect the reality that news media is regularly published and read online.