2019 January 7

Nanda v. McEwan, 2019 ONSC 125

The Ontario Superior Court of Justice (Divisional Court) set aside a Small Claims Court order staying a libel action for defamation relating to WhatsApp communications and an emailed poster.  The Divisional Court held that whether WhatsApp communications constituted a “broadcast” within the meaning of section 5(1) of the Ontario Libel and Slander Act should not be determined summarily but rather at trial on the basis of a proper and complete factual record.

The Divisional Court noted that WhatsApp, which facilitates communications to a limited number of individuals in WhatsApp groups, differs from online newspapers and online broadcasts.  In the latter, there are underlying newspaper articles or radio or television broadcasts.  “Whether [WhatsApp] statements are caught by the Act will have serious and extensive potential consequences, not just for application to this case, but also for statements made on other social media platforms as most statements through social media platforms are made through the internet to a limited number of persons (i.e. those using that social media, which may be hundreds, thousands or millions of people).”  The Divisional Court noted that Small Claims Court had not decided, one way or the other, whether an emailed poster constitutes a broadcast within the meaning of s. 5.1 of the Libel and Slander Act, which dictates that the plaintiff give notice to the defendant before filing a lawsuit for defamation.  Accordingly, this issue was also to be answered at trial on a complete evidentiary record.