Bahlieda v. Santa
October 22, 2003
Is information posted on a website "broadcast" within
the meaning of the Libel and Slander Act? Yes, according to the
judgment of Pierce J. on a summary judgment motion, but Not Necessarily,
according to a unanimous panel of the Ontario Court of Appeal. Chief
Justice McMurtry, and Justices Goudge and Gillese, wrote:
[6] In our view, the motions judge erred in several respects
in finding that there was no genuine issue for trial. Section
7 of the Act provides that subsection 5(1) and section 6 apply
only to "broadcasts from a station in Ontario". She
makes no findings of fact, including no finding as to the essential
question of whether the broadcasts were from a station in Ontario.
On that basis alone, in our view, the application should have
been dismissed. In addition, however, we note that the experts'
opinions conflicted on a number of issues, including whether the
word "dissemination" can properly apply to information
distributed by internet and whether internet publication is immediate
and/or transient. Summary judgment applications are not a substitute
for trial and thus will seldom prove suitable for resolving conflicts
in expert testimony particularly those involving difficult, complex
policy issues with broad social ramifications.
[7] The conflicting expert opinions raise considerations that
are germane not only to deciding whether internet publications
are a broadcast within the meaning of the legislation, but also
to determining whether subsequent viewing of the internet message
by third parties amounts to a republication of the material.
[8] Accordingly, we would allow the appeal and set aside the
order below in which partial summary judgment is granted. Costs
of the appeal and below to the appellant fixed in the amounts
of $12,000 and $10,000, respectively.
See: Bahlieda
v. Santa (Ont. C.A.)
The trial may resolve these issues.
Pierce J.'s ruling would have meant that the notice provisions
of the Libel and Slander Act apply to internet publication, and
that even if the information remains posted on the website, the
limitation period would begin from the first discovery by the plaintiff
of the libel. Here are excerpts of the original judgment:
Does Posting Material on the Internet Constitute a Broadcast?
[50] "Broadcasting" under the Libel and Slander Act
makes no reference to either radio or television, nor to "push"
or "pull" technology.
[51] The purpose of broadcasting definition is to single out
information which is transmitted to mass audiences, where maximum
harm to reputation can be done. Traditionally, this involved radio
and television. In 1980, when the internet was in its infancy,
and not widely available, the Act was amended to incorporate technology
applicable to cable TV. The Legislature obviously sought to clarify
the inclusion of cable television in the scope of the Act, recognizing
the size of its audience.
[52] The court must recognize and give effect to the purpose
of the Act, including the mischief it seeks to ameliorate. In
this Act, that harm is widespread damage to reputation when a
mass audience receives defamatory material. That is the rationale
for applying particular rules to broadcasting that do not apply
to other forms of defamatory communication. It is the reason for
the notice period, and the limitation found in sections 5 and
6.
[53] The internet, sometimes more than traditional broadcast
media, reaches a mass audience. It uses the same infrastructure
common to radio and television, as set out in the Act. I conclude
therefore, that placing material on the internet, via a website,
where it may be accessed by a large audience, constitutes broadcasting
within the meaning of the Libel and Slander Act.
Republication
[54] In the alternative, the plaintiff argues delivery of her
notice of libel and issuance of her statement of claim were in
time because repetition of defamatory material on the defendant's
website monthly constitutes a republication, giving rise each
time to a new cause of action. She submits that her notice of
libel served November 14, 2001 captures the October republication
of the libel dating back to May of that year.
[55] The plaintiff relies on the decision of the Court of Appeal
for England and Wales in Loutchansky v. Times Newspapers Ltd.
[2001] E.W.J. No. 5622; [2002] Q.B. 783; [2002] W.L.R. 640; [2002]
1 All E.R. 652.
[56] In Loutchansky, the defendant sought to have the court adopt
a single publication rule to enable it to take advantage of the
earlier limitation period in respect of defamatory material published
in its newspaper. The plaintiff claimed in a subsequent action
for further libel when defamatory material was posted on the internet
after it had been published in the newspaper. Such a finding would
depart from the traditional English approach that a new cause
of action arises from each publication of defamatory material.
[57] The court ruled it would not adopt the American single publication
approach. It affirmed the English principle that each publication
of a libel gives rise to a separate cause of action, subject to
its own limitation period.
[58] It must be noted that the English limitation period for
defamation arises from the accrual of the cause of action, not
from the date it was discovered, as is the case in Ontario law.
[59] This court is governed by the precedent in Frisina v. Southam
Press Ltd.as it was affirmed by the Ontario Court of Appeal...
See: Bahlieda
v. Santa (Ont. S.C.).
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