{"id":968,"date":"2019-11-06T11:47:36","date_gmt":"2019-11-06T15:47:36","guid":{"rendered":"http:\/\/limitations.ca\/?p=968"},"modified":"2019-11-06T11:54:13","modified_gmt":"2019-11-06T15:54:13","slug":"ontario-the-limitation-of-indefinitely-available-internet-defamation","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=968","title":{"rendered":"Ontario: the limitation of indefinitely available internet defamation"},"content":{"rendered":"

At issue in Torgerson et al. v. Nijem<\/em><\/a>\u00a0was the limitation of a\u00a0claim arising from\u00a0internet defamation where the impugned words remain available indefinitely.\u00a0 The plaintiff argued that each day the words remain available gives rise to a new cause of action, a new claim, and a new limitation period.\u00a0 Justice Schabas rejected this argument: “When a plaintiff becomes aware of a specific posting on a website, time begins to run for the purpose of applying limitation periods. To hold otherwise, and allow plaintiffs to wait indefinitely to sue simply because the libel remains available, would render limitations defences meaningless and have serious implications for freedom of expression.”.\u00a0 The decision is well-reasoned and persuasive; I have no quibbles. This is the analysis:<\/p>\n

\n

[<\/a>12]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Section 4<\/a>\u00a0of the\u00a0Limitations Act, 2002<\/a><\/i>\u00a0creates a general limitation period of two years from \u201cthe day on which the claim was discovered.\u201d Section 5(2) of the\u00a0Act\u00a0<\/i>creates a presumption that the claim is discovered when the act or omission took place, \u201cunless the contrary is proved.\u201d\u00a0 Here, the defendant\u2019s action in publishing the defamatory statements took place on January 18 and 19, 2016, and the plaintiff became aware of them within days, and no later than the end of January, 2016. The defendant therefore submits that it is plain and obvious that the action cannot succeed as the plaintiff did not commence this action until April 23, 2018, more than two years after the actions of the defendant were known, or \u201cdiscovered\u201d, by the plaintiff.<\/p>\n

[<\/a>13]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The plaintiff, however, relies on the \u201cmultiple publication\u201d rule, that each publication of a defamatory communication is a separate and distinct libel, subject to its own limitation period. In the context of an electronic communication or publication on the internet, the argument goes, every time a person accesses or downloads the information there is a new claim and a new limitation period applies. In my view, the plaintiff\u2019s position misunderstands the \u201cmultiple publication\u201d rule and how it has been applied to the internet.<\/p>\n

[<\/a>14]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The \u201cmultiple publication\u201d rule dates back to the somewhat infamous case of\u00a0Duke of Brunswick v. Harmer<\/i>\u00a0(1849),\u00a014 Q.B. 185<\/span><\/span>, in which a cause of action arose after the Duke dispatched his manservant to purchase a back issue of a newspaper from the publisher in order to sue for a libel first published 17 years earlier. This, it was held, constituted a republication by the newspaper, allowing the plaintiff to avoid the limitation period.\u00a0 The \u201cmultiple publication\u201d rule established in that case has been subject to criticism, especially in light of the development of the internet.\u00a0 American courts have rejected it, adopting a \u201csingle publication rule\u201d in which limitation periods begin to run from the date of first publication: see, e.g.,\u00a0Firth v. State of New York<\/i>,\u00a0775 N.E.2d 463<\/span><\/span>\u00a0(NY Ct App 2002);\u00a0Canatella v. Van de Kamp<\/i>,\u00a0486 F. 3d 1128<\/span><\/span>\u00a0(9th<\/sup>\u00a0Cir. 2007).\u00a0 And the British have now adopted a somewhat similar approach in s. 8 of the\u00a0Defamation Act 2013<\/i>, (U.K.) 2013, c. 26.<\/p>\n

[<\/a>15]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The multiple publication rule continues to find acceptance in Canada: see, e.g.,Carter v. B.C. Federation of Foster Parents Assn.,<\/i>\u00a02005 BCCA 398 (CanLII)<\/span><\/a><\/span>;\u00a0Shtaif v. Toronto Life Publishing Co. Ltd<\/i>.,\u00a02014 ONCA 405 (CanLII)<\/span><\/a><\/span>.\u00a0 In this case it is not necessary to address the validity of the rule, other than to note that it may be seen as another way of expressing the \u201crepetition rule\u201d, where someone has chosen to repeat or re-publish a defamatory statement, as the law provides that every person who repeats a libel is liable as if he or she is the original speaker: see Downard,<\/i>\u00a0Libel<\/i>\u00a0(Lexis Nexis, 3rd<\/sup>\u00a0Ed., 2014) at paras. 5.32\u20135.44.<\/p>\n

[<\/a>16]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Another form of republication is found in\u00a0Breeden v. Black<\/i>,\u00a02012 SCC 19 (CanLII)<\/span><\/a><\/span>, on which the plaintiff relies. Statements posted on the internet in the United States were read, downloaded and republished by newspapers in Ontario, creating a cause of action against the American defendants in Ontario, as the tort of defamation occurs when and where the words are read by a third party, and the republication in Ontario was foreseeable as a natural and probable consequence of the posting of the statements on the internet. This does not mean, however, that every time a person reads the defamatory words in those newspapers a new cause of action arises and limitation periods can be avoided.\u00a0 Applying the discoverability principle, a plaintiff must sue within two years of when he or she becomes aware of the defendant\u2019s action in publishing the defamatory words, whether in print or on the internet.<\/p>\n

[<\/a>17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Ontario Court of Appeal considered republication and the multiple publication rule in\u00a0Shtaif<\/i>.\u00a0 There, the plaintiffs had not provided notice of their intention to sue over the print article within six weeks of becoming aware of it, as required by\u00a0s. 5<\/a>\u00a0of the\u00a0Libel and Slander Act<\/a><\/i>. \u00a0However, they became aware of the internet publication later and did provide notice of it within the required time.\u00a0 The plaintiffs then sought to include their complaint about the print version in their action against the magazine, relying on s. 6 of the Act which permits adding other claims for libel against the defendant that occurred within the previous year.<\/p>\n

[<\/a>18]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Court considered and rejected applying the single publication rule, as it would be inconsistent with s. 6 of the Act. The analysis in\u00a0Shtaif\u00a0<\/i>must be seen in the context of that case, which dealt with separate publication in two different mediums \u2013 print and online.\u00a0 As the Court of Appeal observed more recently in\u00a0John v Ballingall<\/i>, at para. 35,\u00a0Shtaif\u00a0\u00a0<\/i>\u201cdoes not mean that each day of online publication grounds a new cause of action.\u201d<\/p>\n

[<\/a>19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0John v. Ballingall\u00a0<\/i>the plaintiff had missed the notice and limitation periods for publications by the media under the\u00a0Libel and Slander Act<\/a><\/i>, and argued that \u201cfor every day the defamatory words are published online, a new and distinct cause of action accrues and a new limitation period begins to run.\u201d The Court of Appeal rejected that position, stating, at para. 35:<\/p>\n

The appellant seeks to rely on an incorrect interpretation of the \u201cmultiple publication rule\u201d. That concept provides that when an alleged libel is\u00a0republished across different mediums<\/u>, including the Internet, those republications are treated as distinct libels. In\u00a0Shtaif<\/i>,\u00a0the court rejected the notion that the limitation period for a suit about an\u00a0online\u00a0magazine article starts to run when the plaintiff becomes aware of the\u00a0printed\u00a0version. This was the basis for the conflicting evidence on discoverability in\u00a0Shtaif<\/i>.\u00a0This decision does not mean that each day of online publication grounds a new cause of action.<\/u>\u00a0The court in\u00a0Vachon v. Canada Revenue Agency<\/i>,\u00a02015 ONSC 6096 (CanLII), expressly rejected this interpretation of\u00a0Shtaif<\/i>. I concur with Hackland J., who said, at para. 22:<\/span><\/a><\/span><\/p>\n

The plaintiff argues that the alleged defamation should be taken as having been republished every day [while it] remained accessible on the internet \u2026\u00a0Shtaif<\/i>\u00a0does not support that proposition \u2026\u00a0any limitation period based on discoverability will run from the point where the internet defamation is discovered.<\/u>\u00a0[emphasis added]<\/p>\n

[<\/a>20]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The plaintiff seeks to distinguish\u00a0John v. Ballingall<\/i>\u00a0on the basis that it only deals with notice periods under the\u00a0Libel and Slander Act<\/a><\/i>.\u00a0 While that was the context, the case also engaged the 3 month limitation period under the\u00a0Libel and Slander Act<\/a><\/i>, and the same reasoning must apply.\u00a0\u00a0 The\u00a0Libel and Slander Act<\/a><\/i>\u00a0simply creates a shorter limitation period, together with a notice requirement, in recognition of the special position of the media, allowing it the opportunity to publish timely corrections to minimize damage and to prepare defences when facts remain fresh.<\/p>\n

[<\/a>21]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In my view, the Court of Appeal in\u00a0John v. Ballingall<\/i>\u00a0clearly rejected the proposition that just because defamatory words remain online and are available to be downloaded and read indefinitely, there is continuous publication allowing limitation periods to be ignored. As the Court noted, the multiple publication rule applies when something is \u201crepublished across different mediums\u201d.\u00a0 Such republications require specific acts by the publisher, or republisher, to further disseminate, or repeat, the libel, as was the case in\u00a0Shtaif<\/i>.<\/p>\n

[<\/a>22]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Furthermore, to give effect to the amendment in the Statement of Claim would create the potential for endless retriggering of limitation periods simply because the words remain on the internet. This would allow plaintiffs to sit on their rights until it suited them to take action, rather than sue when they become aware of the wrong. This would be unfair to defendants who would be subject to lawsuits indefinitely, and raises concerns about freedom of expression.<\/p>\n<\/blockquote>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

At issue in Torgerson et al. v. Nijem\u00a0was the limitation of a\u00a0claim arising from\u00a0internet defamation where the impugned words remain available indefinitely.\u00a0 The plaintiff argued that each day the words remain available gives rise to a new cause of action, a new claim, and a new limitation period.\u00a0 Justice Schabas rejected this argument: “When a … Continue reading Ontario: the limitation of indefinitely available internet defamation<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[566,368,567,239,240,367,426,568],"class_list":["post-968","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-defamation","tag-libel","tag-multiple-publication-rule","tag-ontario-libel-and-slander-act","tag-ontario-libel-and-slander-act-s-51","tag-ontario-libel-and-slander-act-s-6","tag-ontario-rules-of-civil-procedure-r-21","tag-slander"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/968","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=968"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/968\/revisions"}],"predecessor-version":[{"id":970,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/968\/revisions\/970"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=968"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=968"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=968"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}