2017 February 7

Graham v. Purdy, 2017 SKQB 42

The Saskatchewan Court of Queen’s Bench, in its judgment awarding libel damages to the plaintiff doctor, held that “in cases where it is alleged defamatory material was posted on an internet website, as in this case, “publication” takes place wherever and whenever a third party downloads or views the impugned material from the website… Consequently, the limitation period begins to run each and every time defamatory content on the internet is downloaded and viewed.”

The Court also held that “[i]t is not necessary for a plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of a third party.  If, on the facts provide, it can reasonably be inferred that the words were brought to the knowledge of some third party, a prima facie case is established. See Gaskin v Retail Credit Co., [1965] SCR 297.” “In Bernstein v Poon, 2015 ONSC 155, although it was proven that the defamatory material was posted on the defendant’s website for at least one to two years prior to being removed, there was no direct evidence that anyone except the defendant and his legal representatives viewed the material.  In concluding that there was more than ample evidence to support the drawing of an inference that the material on the website was viewed by third parties, Mew J. held that ‘[t]o find otherwise would be to ignore the realities of twenty-first century communication…“. “The defendants in the present case acknowledged that the articles in question remain on websites controlled by the Star Phoenix, Canwest Publishing Inc. and/or Postmedia Network Inc.  … it is a reasonable conclusion that anyone with a search engine could have accessed that material within the last two years and as a result the limitation period would not have expired.”