The Ontario Court of Appeal recently released its decision in John v. Ballingall, et al, 2017 ONCA 579, which confirmed that online versions of newspapers are subject to the protections found in Ontario’s Libel and Slander Act, R.S.O. 1990, c. L.12 (the “Act”).
The Act provides for certain notice and limitation periods, which if not met, may act as a bar for any future defamation actions. Specifically,
- Section 5(1) of the Act provides that no action for libel in a “newspaper” or “broadcast” lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given the defendant notice in writing of the specific matter complained of.
- Section 6 of the Act provides that an action for libel in a “newspaper” or “broadcast” shall be commenced within three months after the libel has come to the knowledge of the plaintiff.
In this decision, the plaintiff (a rapper known as Avalanche the Architect) commenced an action for libel against the Toronto Star because of an online article published on the Toronto Star website. The plaintiff had sent a proper notice email to the defendants and issued a Statement of Claim approximately sixteen months after he became aware of the alleged libel. The defendants were successful on a Rule 21 motion to dismiss the action as statute-barred based on the plaintiff’s failure to meet the six week notice requirement and the three month limitation period under the Act.
The plaintiff appealed the motion decision and argued that the online article was not published in a “newspaper” as defined in the Act and therefore the alleged libel was excluded from the notice requirements under the Act. In particular, the plaintiff relied on a literal interpretation of “newspaper” which was defined in the Act as “a paper … printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year”.
The Court of Appeal disagreed with the plaintiff and applied principles of statutory interpretation to find that the definition of “newspaper” was not restricted to newspapers printed on physical paper. Rather, the definition of “newspaper” under the Act included online versions of newspapers in order to give meaning to the purpose and scheme of the legislation. The Court of Appeal stated the following:
The regime in the [Act] provides timely opportunity for the publisher to address alleged libellous statements with an appropriate response that could be a correction, retraction, or apology. Now that newspapers are published and read online, it would be absurd to provide different regimes for print and online versions.
This decision confirms that there is no distinction between online newspapers and printed newspapers in the eyes of the Act. In addition, it serves as a reminder to litigants and counsel alike that immediate action is required in situations involving allegations of online defamation.