2013 June 17
Shtaif v. Toronto Life Publishing Co, 2013 ONCA 405, varying 2011 ONSC 6732
The Ontario Court of Appeal held that whether a claim arising from the internet version of a magazine article is subject to the notice and limitation provisions in s.5(1) and s. 6 of the Ontario Libel and Slander Act is a genuine issue requiring a trial. Section 5(1) requires that a libel plaintiff give notice to a defendant within six weeks after the alleged libel has come to the plaintiff’s knowledge if the libel is contained in a “newspaper” printed and published in Ontario or a broadcast from a station in Ontario. Section 6 requires that an action for libel in a newspaper or broadcast be commenced within 3 months after the libel has come to the knowledge of the person defamed.
The lower court judge had ruled on a motion for summary judgment that a website posting is not a “newspaper” and held it was not a “broadcast” as defined in the Ontario Libel and Slander Act. Applying its earlier decision in Bahlieda v Santa, (2003), 68 O.R. (3d) 115, the Court of Appeal held the evidentiary record before the Court was not sufficient to decide these questions and they should only be decided at a trial of the plaintiffs complaint about the internet version of the article. Note: if the internet article is not a “newspaper” or “broadcast,” the limitation period of two years under the Ontario Limitations Act applies.
The Ontario Court of Appeal rejected submissions by the defendant Toronto Life that the American “single publication rule” should be applied in Ontario. The Court noted that 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. In other words, the entire edition of an newspaper, book or magazine is treated as a single publication when it is first made available to the public. Later distributions are relevant to the assessment of damages but do not create a new cause of action or a new limitation period.”
The Court noted that the single publication rule has been rejected in England, Australia and by the British Columbia Court of Appeal. The Court also noted that even in “American states which apply the single publication rule, at least one state, California, has rejected its application for reprinting or republication in a different form. … Also, the Restatement of the Law, Second: Torts (American Law Institute, 1977) states that the single publication rule does not include separate aggregate productions on different occasions. If the publication reaches a new group, the repetition rule justifies a new cause of action. See s. 577A.” In this regard, the Ontario Court of Appeal stated:
36. Applying the single publication rule, where, as in this case, the original publication is print and the republication is on the internet could create a serious injustice for persons whose reputations are damaged by defamatory material. A plaintiff may not want to expend the time and resources to sue for an alleged libel in a magazine, which has a limited circulation and a limited lifespan. The plaintiff may consider the magazine’s circulation insufficient to warrant a lawsuit.
36. However, a plaintiff may well want to spend the time and money to sue if the alleged libel is on the magazine’s website and accessible on the internet. Unless the article is removed from the website, its circulation is vast, its lifespan is unlimited, and its potential to damage a person’s reputation is enormous. Yet, if a single publication rule is applied, the plaintiff’s claim may be statute barred before real damage to reputation has occurred.