Canada: Ontario Court Of Appeal Clarifies Law Of Internet Defamation

On June 17, 2013, the Ontario Court of Appeal released a decision with a number of important implications for the law of Internet defamation. In Shtaif v. Toronto Life Publishing Co. Ltd., the Court addressed the issues of how the limitation periods in Ontario's Libel and Slander Act (LSA) apply to allegedly defamatory Internet publications, rejected applying the American "single publication rule" in Ontario, and clarified the circumstances when defamation and negligence claims can be brought concurrently.

Background
In Shtaif, the plaintiff businessmen alleged that the defendants defamed them by publishing an article in May 2008, first in the print version of Toronto Life magazine and later on Toronto Life's website. The plaintiffs were initially only aware of the print version of the article, which they complained about but did not sue over. They became aware of the online version of the article in August 2008 and, in September 2008, gave notice required under section 5(1) of the LSA that the Internet article had libeled them. In October 2008, the plaintiffs commenced a defamation and negligence claim against the defendants in connection with the online version of the article.

In June 2011, the defendants moved to dismiss the action on the grounds that the defamation claim was barred by the limitation period in section 6 of the LSA and that the negligence claim was bound to fail because they owed no duty of care to the plaintiffs. The plaintiffs brought a cross-motion to amend their claim to add a libel claim over the print version of the article, arguing that they could "recapture" this claim under section 6 of the LSA.

Notice and Limitation Periods for Internet Publications: An Open Question
On appeal, the Court addressed a threshold issue of whether the plaintiff's defamation claim over the Internet article was subject to the specific notice and limitation provisions in sections 5(1) and 6 of the LSA, respectively. 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 also permits a previous libel to be "recaptured" in such an action, allowing plaintiffs to sue over other libels against the plaintiff by the defendant in the same newspaper or broadcasting station within a one year period before the commencement of the action. Section 7 of the LSA restricts the application of sections 5(1) and 6 to "newspapers printed and published in Ontario and to broadcasts from a station in Ontario," with the terms "newspaper" and "broadcasting" defined in section 1(1). Thus, if the plaintiffs' claims in Shtaif regarding the Internet article were not subject to sections 5(1) and 6 of the LSA, then the usual – and much longer – two-year limitation period in the Limitations Act would apply.

In Shtaif, the motion judge had ruled that the Internet article was not subject to the notice and limitation provisions in the act because the Toronto Life website was not a "newspaper," nor was there evidence that Toronto Life's website was a "broadcast" as defined in the LSA. On appeal, the Court of Appeal decided that the question of whether the Internet version of an article is a newspaper published in Ontario or a broadcast from a station in Ontario was a genuine issue for trial. In so doing, the Court stated that the question of whether or in what circumstances an Internet publication is subject to sections 5 and 6 of the LSA was "a difficult one" and that the application of the LSA to Internet publications will "have to come about by legislative amendment or through judicial interpretation of statutory language drafted in a far earlier era." The Court noted that the LSA was "drafted to address alleged defamation in traditional print media and in radio and television broadcasting" and that "[i]t did not contemplate this era of emerging technology, especially the widespread use of the internet." As such, whether a libel claim for an Internet article is subject to the notice and limitation provisions of the LSA remains an open question.

Single Publication Rule Rejected in Ontario
The Court rejected the defendants' argument that the American "single publication rule" for mass publications should apply. This rule holds that a 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. As the Court explained, "the entire edition of a newspaper, book or magazine is treated as a single publication when it is first made available to the public. Later distributions of the same edition are relevant to the assessment of damages but do not create a new cause of action or a new limitation period." If the single publication rule were to apply in Shtaif, the limitation period applicable to the plaintiffs' claim – including both the print and online articles – would have expired six weeks after the print article was first published.

Following courts in England, Australia, and British Columbia, the Court rejected the single publication rule in Ontario as being inconsistent with the limitations provisions of the LSA, and because the Court had previously affirmed the traditional English rule that "every republication of a libel is a new libel." Even if the single publication rule were to be considered in Ontario, the Court stated that it should not be applied across different mediums of communication. This aspect of the ruling was motivated by a concern of a potential injustice that might arise where the original publication was in print form, perhaps in a magazine with a limited circulation and lifespan, as opposed to a republication of that same publication on the Internet, where its circulation may be vast and its lifespan potentially unlimited. In this portion of the ruling, the Court echoed prior statements to the effect that defamation on the Internet is potentially more harmful than defamation through traditional print media.

Shtaif makes clear that where an alleged libel is republished across different mediums, including the Internet, those republications will be treated as distinct libels. As a result, plaintiffs retain significant flexibility in choosing which allegedly libelous publications they might wish to sue upon.

Restricting the Scope of "Recapturing"
The Court rejected the plaintiffs' attempt to "recapture" their claim over the print version of the article under section 6 of the LSA, concluding that a recaptured libel is a separate cause of action that can only be asserted within the time period set out in the LSA. The Court set out three timing requirements that a plaintiff who has brought a libel action against the media must meet in order to include in that action a claim for an earlier libel:

Based on the facts in Shtaif, the Court concluded that the plaintiffs met the first and second requirements but had failed to meet the third requirement, having only asserted their claim regarding the print article in June 2011, well after the applicable three-month limitation period expired in November 2008.

Concurrent Claims in Negligence and Defamation
On an issue that is not specific to Internet defamation, the Court granted summary judgment to the defendants and dismissed the plaintiffs' negligence claim. It confirmed that since the Supreme Court of Canada's 2006 decision in Young v. Bella, a negligence claim can proceed alongside a defamation claim, but only where the necessary elements of a cause of action in negligence can be established. In other words, what is in substance a defamation claim can also be brought as a negligence claim where there is a sufficiently close relationship between the parties so as to give rise to a duty of care, and where the damages sought cover more than just harm to the plaintiff's reputation. The Court made clear that where an action "is an action for defamation and nothing more," a negligence claim brought concurrently with a defamation claim is likely to fail.

In Shtaif, there were only two telephone interviews between the plaintiffs and the defendants, and no other pre-existing relationship between the parties. On these facts, the Court concluded that no duty of care arose and that to conclude otherwise would mean that "in virtually every case" a plaintiff could proceed with concurrent negligence and defamation claims. The principle in Young v. Bella, the Court stated, did not go that far. These findings are important for cases involving media publications. They signal that in most cases a plaintiff will not have a valid negligence claim arising from a media publication, as a media organization does not owe a duty of care to the subjects of its coverage.