It is often said that you can’t fit a square peg in a round hole. However, it certainly hasn’t stopped the Ontario courts from giving it a try in attempting to apply Ontario’s antiquated Libel and Slander Act to defamatory publications on the internet.
Without doubt, the internet has become the most effective way to publish defamatory material throughout the entire world.
Hardly a single day goes by without influential people complaining about fake news. And we also now know that foreign nations use the internet to manipulate perceptions and influence elections.
In Ontario, there have been a number of cases that have considered whether the long-standing six-week notice and three-month limitation period defences in the LSA apply to internet publications, even though the legislation has never expressly referenced internet publications.
Hence, it’s like trying to fit a square peg into a round hole.
In the 2017 decision of John v. Ballingall, the Ontario Court of Appeal held that the online publication of the Toronto Star was protected by the notice and limitation period provisions of the LSA on the basis that “a newspaper does not cease to be a newspaper when it is published online.”
But what if a defendant publishes an online article without also publishing a traditional print newspaper? Should the statutory protections apply only to those online publishers who also happen to publish traditional newspapers?
And while an Ontario Superior Court judge found on a summary judgment motion that a publication on the internet was a “broadcast” so as to trigger the notice and limitation period provisions of the LSA in the 2003 case of Bahlieda v. Santa, the Court of Appeal overturned that decision later that year on the basis that adjudication by trial of the parties’ conflicting expert evidence (as to whether publication on the internet was a “broadcast”) was required to decide the issue.
Predictably, the Bahlieda v. Santa case never went to trial, leaving the issue unresolved to this day.
To be clear, one would be hard-pressed to advocate for internet defamation claims being subject to the notice and limitation period obstacles currently in place under the LSA.
In fact, one would think that such provisions are unduly restrictive and unfair considering that many defamatory postings on the internet are made by individuals who only find the courage to publish outrageous lies about others through anonymity.
And if you have ever had to decide whether it is worth actually starting a claim against “John Doe” within three months and then pursuing a Norwich order at great expense to later find out that the publisher is a 16-year-old kid in a foreign jurisdiction whose only asset is his computer, you will know what I am talking about.
From a historical perspective, newspapers have had statutory assistance in defending defamation claims since the 1870s.
In 1894, the Ontario legislature passed legislation that imposed a three-month limitation period on suing newspapers for libel and, in 1909, a six-week mandatory notice provision was enacted to protect newspapers even further.
Why was this done?
It was apparently believed that imposing such initial hurdles would provide newspapers with an opportunity to publish retractions on a timely basis. At that time, newspapers were the most common mode of mass communication.
A reader of a libellous article in a newspaper was also likely to read future publications of that same newspaper in which an editor had an opportunity to mitigate the damage (and pacify a likely plaintiff) by the publication of an effective apology and retraction.
Thus, it was a no-harm, no-foul policy that balanced the rights of individuals to protect their reputations while simultaneously protecting newspapers from dated defamation claims.
However, in 1958, and with the proliferation of radio and television, parallel protections were afforded for “broadcasting” libellous material, presumably with the same policy in mind.
But what about the internet?
It has often been observed that an impeccable reputation achieved over a lifetime may be shattered in the few seconds it takes to falsely defame that person, and that observation is most apt when one considers the impact of internet defamation.
The recent passing of Ontario’s Protection of Public Participation Act — legislation designed to protect individuals who express views on matters of public interest from strategic defamation litigation — will surely be of great comfort to internet defamers, who will be emboldened to spread false news and to attack personal and professional reputations under the cloak of freedom of expression.
However, while the legislature must get some credit in seeking to promote free speech in this fashion, did it miss an opportunity to go further and legislate other issues that pertain to internet defamation, including anonymous postings, limitation periods, the impact of publishing timely retractions on damage awards and the like?
Rather than ask our courts to try to jam that square peg into a round hole in determining whether the LSA applies to all internet publications, our legislators must recognize that the internet is not only here to stay, it has also become a very powerful and dangerous weapon for reputational attacks so as to warrant dedicated legislation.
There is no doubt that there will be many challenges and policy considerations to consider in legislating internet defamation, but it is the proverbial elephant in the room and it is not going away any time soon.
Robert B. Cohen is a partner at Cassels Brock & Blackwell LLP. He practises in the field of commercial and securities litigation and litigates cases in various areas of law.