2011 November 21

Shtaif v. Toronto Life Publishing Co., 2011 ONSC 6732

The Ontario Superior Court of Justice, in a carefully reasoned judgment, held that the libel notice requirement contained in s. 5(1) of the Ontario Libel and Slander Act does not apply to libel on a website. This decision directly contradicts the September 19, 2002 decision of the Ontario Court of Appeal in Weiss v Sawyer, [2002] 61 O.R. (3d) 526, which concluded that the notice provision applied to an online version of a newspaper.

This Court in Shtaif treated the comments in Weiss v Sawyer about online versions of newspapers as obiter (non-binding) on the basis there was no finding, at either level of court in Weiss v Sawyer, that the libel in issue was actually posted on the defendant newspaper’s website. The Court in Shtaif also stated that many of the issues raised before it concerning the statutory definition of “newspaper” and “broadcast” in the Ontario Libel and Slander Act were not raised in Weiss and the Court of Appeal therefore did not have the benefit of arguments by counsel on the implications of the various statutory provisions. The Court in Shtaif held that the Libel and Slander Act treats a print newspaper entirely differently than an online newspaper.

In Shtaif, the alleged online libel appeared in an article published in the defendant Toronto Life magazine’s website on May 29, 2009. The plaintiff had learned of the printed version of the article (which appeared on newsstands in late May, 2008) by June 23, 2008 but did not see the internet version until August 20, 2008. The plaintiff purported to serve a libel notice pursuant to s. 5(1) of the Ontario Libel and Slander Act on September 29, 2008, which was outside the 6 week notice period prescribed by s. 5(1) concerning the print edition, but within 6 weeks of learning of the online article on the defendant’s website.

The defendants in Shtaif unsuccessfully argued that the Court should apply the American “single publication” rule which provides that for “any single edition of a newspaper or book, there was but a single potential action for a defamatory statement contained in a newspaper or book, no matter how many copies of the newspaper were distributed.” Winrod v Time, Inc. (1948) 334 Ill.App.59. The court stated: “Even though Toronto Life magazine qualifies as a “newspaper” [within the meaning of the Ontario Libel and Slander Act], its website is an entirely different medium and not a newspaper. Although it undoubtedly makes sense to treat multiple libellous statements that appear at various times in the same magazine as a single incident and to allow any affected victim to sue only once for all of them, it makes no sense and would serve no useful purpose, as in this case, to treat one libel printed in a magazine and repeated in a posting on a website as a single libel in the same way. In my view the alleged libel in the print copy of Toronto Life magazine must be treated separately from the alleged libel in the website posting.”

In the course of reviewing the Ontario Libel and Slander Act, the Court in Shtaif stated that the expression “libel” in the statute does not mean any defamatory statement made in writing, but is deemed to mean “defamatory words in a newspaper or broadcast.” “In particular, the website posting cannot be said to contain “libel in a newspaper or broadcast” even if it were to contain a defamatory statement. As clearly defined in section 1(1) of the Act, a newspaper must be made of paper, it must be printed and it must be published periodically as specified. As well, as stipulated in section 7 of the Act, the Act applies “only to newspapers printed and published in Ontario.” A website posting does not meet any of these criteria and, therefore, cannot qualify as a “newspaper.” “Nor does any website on the Internet “broadcast from a station in Ontario” or, indeed, “broadcast” from any place as the word is defined. The process of posting to a website is initiated by uploading content to the website on the Internet through an electronic device referred to as a ‘sever’. There is evidence (see the plaintiff’s motion record at tab Y), not contradicted, that the TL server is located near Austin, Texas. It follows that TL may not “broadcast” or otherwise disseminate the contents of its website “from a station in Ontario”. If, on the other hand, it were to be found that TL does “broadcast,” the broadcast would be from a place in Texas.”