Should identical defamatory articles, one published in a
magazine and the other on the Internet, be treated differently for
the purposes of limitation periods? Should each be treated as a
separate libel, or do they both constitute a single libel? The
Ontario Court of Appeal recently weighed in on these questions,
leaving the former open, but deciding on the latter that each libel
was a separate libel and in so doing, rejected the American
"single publication" rule.
Toronto Life Publishing Co. Ltd, 2013 ONCA 405 arose out
of an allegedly defamatory article that appeared in Toronto Life
magazine and later, on Toronto Life's website. At the time, the
plaintiffs complained about the print article but did not sue.
Shortly thereafter, the same article appeared online. The
plaintiffs became aware of the online version and in October 2008,
commenced a defamation and negligence claim with respect to the
online version of the article.
In June 2011, the defendants moved to dismiss the action on the
basis that defamation claim was outside the limitation period in
section 6 of the Libel and Slander Act
("LSA") and that the negligence claim was not made out
because they owed no duty of care to the plaintiffs. The plaintiffs
brought a cross-motion to amend their claim to add a libel claim
regarding the earlier print version of the article, under the
"recapture" provisions of section 6 of the LSA.
Limitation Periods for Internet Publications
The threshold issue was whether the plaintiff's defamation
claim with respect to the online article was subject to the
limitation provisions in sections 5(1) and 6 of the LSA.
The limitation period in section 5(1) bars an action for libel
in a "newspaper" or in a "broadcast" outside
six weeks. Section 6 then states that such an action must be
commenced within three months after the libel has come to the
knowledge of the person defamed but also permits a previous libel
to be "recaptured" in such an action. This allows
plaintiffs to sue over previous libels by the same newspaper or
broadcasting station in the one year period prior to the
commencement of the action. Section 7 then restricts the
application of sections 5(1) and 6 to "newspapers printed and
published in Ontario and to broadcasts from a station in
Ontario." The plaintiffs argued that their claims regarding
the Internet publication were not subject to sections 5(1) and 6,
and therefore the longer two-year limitation period in the
Limitations Act would apply.
The Court of Appeal declined to rule on the motion, and decided
that this question was a genuine issue for trial.
Single Publication Rule
The defendants argued that the American "single publication
rule" should apply. Under this rule, a plaintiff 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. Applied here, this rule would mean that the
limitation for both the print and online version of the article
would have run out six weeks after the print article was first
published. English and Australian courts have rejected the single
publication rule, as has the B.C. Court of Appeal.
The Ontario Court of Appeal canvassed the law, ultimately
finding that the single publication rule was anathema to the
balancing of interests struck by the limitations provisions of the
LSA. The Court expressed concern that the single publication rule
was not adequate for all forms of communication and observed that
while a print publication might have a limited circulation and
lifespan, the lifespan and circulation of a publication on the
Internet were potentially unlimited. As a result, the Court
rejected the single publication rule, meaning that each
republication of a libel should be treated as a distinct libel.
"Recapturing" Previous Libel
The Court also restricted the scope of the "recapture"
provisions, finding that a recaptured libel is a separate cause of
action – and must therefore be asserted within the limitation
period set out in the LSA. Here, the claim for the recaptured libel
would have to have been asserted in the action and therefore within
three months after the libel sued on came to the plaintiff's
knowledge. The Court found that this was not the case and that the
claim therefore failed.
Finally, the Court granted summary judgment and dismissed the
plaintiffs' negligence claim. While a negligence claim can
proceed in tandem with a defamation claim, the negligence claim
must be able to stand independently. Here, the Court found no
pre-existing relationship between the parties sufficient to
establish a duty of care and the claim failed for that reason.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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