Bahlieda v. Santa
From Ad IDEM / CMLA
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:
 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.
 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.
 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.
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?
 "Broadcasting" under the Libel and Slander Act makes no reference to either radio or television, nor to "push" or "pull" technology.
 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.
 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.
 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.
 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.
 The plaintiff relies on the decision of the Court of Appeal for England and Wales in Loutchansky v. Times Newspapers Ltd.  E.W.J. No. 5622;  Q.B. 783;  W.L.R. 640;  1 All E.R. 652.
 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.
 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.
 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.
 This court is governed by the precedent in Frisina v. Southam Press Ltd.as it was affirmed by the Ontario Court of Appeal...