2012 January 19

Alberta Adolescent Recovery Centre v. Canadian Broadcasting Corp., 2012 ABQB 48

The Alberta Court of Queens Bench dismissed an interlocutory application by three journalists to be removed as libel defendants on the basis their application raised “complex and fundamental issues” which should be decided at trial after full evidence and argument.

The lawsuit involves libel claims arising from a television broadcast and a television programme’s subsequent continuous availability on the Internet.

The journalists contended that they had not been personally served with the notice required by s. 13(1) of the Alberta Defamation Act, which provides:

13 (1) No action lies unless the plaintiff has, within 3 months after the publication of the defamatory matter has come to the plaintiff’s notice or knowledge, given to the defendant, in the case of a daily newspaper, 7 and in the case of any other newspaper or when the defamatory matter was broadcast, 14 day’s notice in writing of the plaintiff’s intention to bring an action, specifying the defamatory matter complained of.
(2) The notice shall be served in the same manner as a statement of claim.

In the context of the Internet, the Court identified the following issues for the trial judge (at paras. 34 and 35):

[34] First, does the Defamation Act even apply to the initial television broadcast of the Program? The Act defines broadcast in a manner that no longer captures the technological reality of modern television transmission, referring as it does to “electromagnetic waves of frequencies lower than 3000 gigahertz.” The Plaintiff argues that the Act should be read restrictively as it constricts common law rights and that no notice is required because the Act does not apply. The Defendants call for a purposive, remedial and contextual approach to the Act so that its policy goals can be maintained in light of changing technology. In short, the Program was broadcast, even without gigahertz.

[35] Second, does the Defamation Act apply to the Program posted to the CBC website and available on the Internet? There are two aspects worthy of note. First, does posting the Program on the internet constitute a publication of the Program? Second, if it does, and the publication is defamatory, when does the act of defamation occur – only on the first day it appears on the Internet or every day that it is available on the Internet?

The remaining issues identified by the Court are not specific to the Internet.