Because the statement was made in an online forum, it was not considered derogatory since there was the opportunity, and even expectation to challenge or provide context to the statement.

Internet Defamation lawyer Gil Zvulony recently appeared on CTV to discuss the growing problem of defamation on internet sites such as Facebook, Myspace and Twitter. For a list of other media appearances by Gil Zvulony see Media Appearances.

Does the Libel and Slander Act Apply to the Internet?

This article explores the notice requirements and the limitation period requirements of the Libel and Slander Act and whether they apply to defamation on the internet .  It concludes with the recommendation that, whenever possible, the Act be complied with.

Notice Under the Libel and Slander Act

The notice requirements in the Libel and Slander Act (see below for a copy of the law) apply to defamatory statements in a newspaper or a broadcast.  The requirement is that within six weeks after discovering a claim, the plaintiff must serve notice in writing to the defendant of when, where and how the defamation took place (thereby giving the defendant a chance to make a quick retraction of the statement and mitigate the damage).

Section 5 of the Libel and Slander Act states:

Notice of action

5.  (1)  No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant. R.S.O. 1990, c. L.12, s. 5 (1).

Section 1 of the Libel and Slander Act defines Newspaper and Broadcast:

Definitions

1.  (1)  In this Act,

“broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,

(a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or

(b) cables, wires, fibre-optic linkages or laser beams,

and “broadcast” has a corresponding meaning; (“radiodiffusion ou télédiffusion”, “radiodiffuser ou télédiffuser”)

“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements,printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year. (“journal”) R.S.O. 1990, c. L.12, s. 1 (1).

As if the time of writing, there has been no definitive judicial ruling or legislation on whether the Libel and Slander Act applies to the internet.

The the law of defamation is governed by the common law with some relatively modest changes by way of legislation.  One such change is to be found in s. 5(1) of the Libel and Slander Act (reproduced above).  The language is crystal clear in that s. 5(1) applies exclusively to those instances where the alleged libel is to be found in a “newspaper” or in a “broadcast”.  The aim of s. 5(1) is to provide the party who has committed the alleged defamation the opportunity to correct or apologize for the offending statements in the same public forum.  Hence the notice requirement.

In Bahlieda v. Santa [2003] O.J. No. 4091, the Ontario Court of Appeal ruled that a lower court erred in granting summary judgment to the defendant in a defamation case.    The plaintiff, Bahlieda, sued the defendant, Santa, for placing allegedly defamatory material on May 10, 2001.  The plaintiff discovered the material on July 15, 2001, but did not serve the defendant with notice until November 14.  The defendant moved for summary judgment on the basis that the plaintiff had failed to comply with the notice requirements.    The Court of Appeal ruled that there was a genuine triable issue in the question of whether publishing something on the internet is a “broadcast” as defined in the Libel and Slander Act.  The Court stated at paras 6-7 that there was a genuine issue for trial on the question of whether the website was “from a station in Ontario” as required by the Libel and Slander Act, and other issues involved in deciding whether a website can be a broadcast at all:   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…. 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.

Limitation Period For Internet Defamation

Because of the uncertainty in the law with respect to whether the Libel and Slander Act apply to internet postings it is not clear what the limitation period is for internet postings.

If the Libel and Slander Act Applies

If the Libel and Slander Act Applies then section 6 of the Act specifies the limitation period for internet postings:

Limitation of action

6.  An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action. R.S.O. 1990, c. L.12, s. 6.

Please note that the Notice Requirements as discussed above of Section 5 of the Libel and Slander Act must be complied with as well.

If the Libel and Slander Act Does Not Apply

If the Libel and Slander Act does not apply to internet postings, in other words, if the law ultimately decides that an internet posting is neither a “newspaper” or “broadcast” within the meaning of the Libel and Slander Act, then the default limitation period of two years applies as per the Limitations Act.

Basic limitation period

4.  Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

There is, therefore, no definitive law on whether an internet posting is a broadcast or newspaper within the meaning of the Libel and Slander Act.

Conclusion

Until the issue is fully resolved, it is usually advisable to follow the Libel and Slander Act and give notice within six weeks to the creator of a defamatory internet posting and/or the owner of a website with a defamatory posting and then to commence an action within 3 months after the libel has come to the attention.

Libel and Slander Act

R.S.O. 1990, CHAPTER L.12

Consolidation Period: From December 31, 1990 to the e-Laws currency date.

See http://www.canlii.org/en/on/laws/stat/rso-1990-c-l12/latest/rso-1990-c-l12.html for latest version

No amendments.

Definitions

1. (1) In this Act,

“broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,

(a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or

(b) cables, wires, fibre-optic linkages or laser beams,

and “broadcast” has a corresponding meaning; (“radiodiffusion ou télédiffusion”, “radiodiffuser ou télédiffuser”)

“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year. (“journal”) R.S.O. 1990, c. L.12, s. 1 (1).

Meaning of words extended

(2) Any reference to words in this Act shall be construed as including a reference to pictures, visual images, gestures and other methods of signifying meaning. R.S.O. 1990, c. L.12, s. 1 (2).

Libel

What constitutes libel

2. Defamatory words in a newspaper or in a broadcast shall be deemed to be published and to constitute libel. R.S.O. 1990, c. L.12, s. 2.

Privileged reports

3. (1) A fair and accurate report in a newspaper or in a broadcast of any of the following proceedings that are open to the public is privileged, unless it is proved that the publication thereof was made maliciously:

1. The proceedings of any legislative body or any part or committee thereof in the British Commonwealth that may exercise any sovereign power acquired by delegation or otherwise.

2. The proceedings of any administrative body that is constituted by any public authority in Canada.

3. The proceedings of any commission of inquiry that is constituted by any public authority in the Commonwealth.

4. The proceedings of any organization whose members, in whole or in part, represent any public authority in Canada. R.S.O. 1990, c. L.12, s. 3 (1).

Idem

(2) A fair and accurate report in a newspaper or in a broadcast of the proceedings of a meeting lawfully held for a lawful purpose and for the furtherance of discussion of any matter of public concern, whether the admission thereto is general or restricted, is privileged, unless it is proved that the publication thereof was made maliciously. R.S.O. 1990, c. L.12, s. 3 (2).

Publicity releases

(3) The whole or a part of a fair and accurate synopsis in a newspaper or in a broadcast of any report, bulletin, notice or other document issued for the information of the public by or on behalf of any body, commission or organization mentioned in subsection (1) or any meeting mentioned in subsection (2) is privileged, unless it is proved that the publication thereof was made maliciously. R.S.O. 1990, c. L.12, s. 3 (3).

Decisions, etc., of certain types of association

(4) A fair and accurate report in a newspaper or in a broadcast of the findings or decision of any of the following associations, or any part or committee thereof, being a finding or decision relating to a person who is a member of or is subject, by virtue of any contract, to the control of the association, is privileged, unless it is proved that the publication thereof was made maliciously:

1. An association formed in Canada for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association, or the actions or conduct of any persons subject to such control or adjudication.

2. An association formed in Canada for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession.

3. An association formed in Canada for the purpose of promoting or safeguarding the interests of any game, sport or pastime to the playing or exercising of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime. R.S.O. 1990, c. L.12, s. 3 (4).

Improper matter

(5) Nothing in this section authorizes any blasphemous, seditious or indecent matter in a newspaper or in a broadcast. R.S.O. 1990, c. L.12, s. 3 (5).

Saving

(6) Nothing in this section limits or abridges any privilege now by law existing or protects the publication of any matter not of public concern or the publication of which is not for the public benefit. R.S.O. 1990, c. L.12, s. 3 (6).

When defendant refuses to publish explanation

(7) The protection afforded by this section is not available as a defence in an action for libel if the plaintiff shows that the defendant refused to insert in the newspaper or to broadcast, as the case may be, a reasonable statement of explanation or contradiction by or on behalf of the plaintiff. R.S.O. 1990, c. L.12, s. 3 (7).

Report of proceedings in court

4. (1) A fair and accurate report without comment in a newspaper or in a broadcast of proceedings publicly heard before a court of justice, if published in the newspaper or broadcast contemporaneously with such proceedings, is absolutely privileged unless the defendant has refused or neglected to insert in the newspaper in which the report complained of appeared or to broadcast, as the case may be, a reasonable statement of explanation or contradiction by or on behalf of the plaintiff. R.S.O. 1990, c. L.12, s. 4 (1).

Improper matter

(2) Nothing in this section authorizes any blasphemous, seditious or indecent matter in a newspaper or in a broadcast. R.S.O. 1990, c. L.12, s. 4 (2).

Notice of action

5. (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant. R.S.O. 1990, c. L.12, s. 5 (1).

Where plaintiff to recover only actual damages

(2) The plaintiff shall recover only actual damages if it appears on the trial,

(a) that the alleged libel was published in good faith;

(b) that the alleged libel did not involve a criminal charge;

(c) that the publication of the alleged libel took place in mistake or misapprehension of the facts; and

(d) that a full and fair retraction of any matter therein alleged to be erroneous,

(i) was published either in the next regular issue of the newspaper or in any regular issue thereof published within three days after the receipt of the notice mentioned in subsection (1) and was so published in as conspicuous a place and type as was the alleged libel, or

(ii) was broadcast either within a reasonable time or within three days after the receipt of the notice mentioned in subsection (1) and was so broadcast as conspicuously as was the alleged libel. R.S.O. 1990, c. L.12, s. 5 (2).

Case of candidate for public office

(3) This section does not apply to the case of a libel against any candidate for public office unless the retraction of the charge is made in a conspicuous manner at least five days before the election. R.S.O. 1990, c. L.12, s. 5 (3).

Limitation of action

6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action. R.S.O. 1990, c. L.12, s. 6.

Application of ss. 5 (1), 6

7. Subsection 5(1) and section 6 apply only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario. R.S.O. 1990, c. L.12, s. 7.

Publication of name of publisher, etc.

8. (1) No defendant in an action for a libel in a newspaper is entitled to the benefit of sections 5 and 6 unless the names of the proprietor and publisher and the address of publication are stated either at the head of the editorials or on the front page of the newspaper. R.S.O. 1990, c. L.12, s. 8 (1).

Copy of newspaper to be admissible evidence

(2) The production of a printed copy of a newspaper is admissible in evidence as proof, in the absence of evidence to the contrary, of the publication of the printed copy and of the truth of the statements mentioned in subsection (1). R.S.O. 1990, c. L.12, s. 8 (2).

Where ss. 5, 6 not to apply

(3) Where a person, by registered letter containing the person’s address and addressed to a broadcasting station, alleges that a libel against the person has been broadcast from the station and requests the name and address of the owner or operator of the station or the names and addresses of the owner and the operator of the station, sections 5 and 6 do not apply with respect to an action by such person against such owner or operator for the alleged libel unless the person whose name and address are so requested delivers the requested information to the first-mentioned person, or mails it by registered letter addressed to the person, within ten days from the date on which the first-mentioned registered letter is received at the broadcasting station. R.S.O. 1990, c. L.12, s. 8 (3).

Newspaper libel, plea in mitigation of damages

9. (1) In an action for a libel in a newspaper, the defendant may plead in mitigation of damages that the libel was inserted therein without actual malice and without gross negligence and that before the commencement of the action, or at the earliest opportunity afterwards, the defendant inserted in such newspaper a full apology for the libel or, if the newspaper in which the libel appeared is one ordinarily published at intervals exceeding one week, that the defendant offered to publish the apology in any newspaper to be selected by the plaintiff. R.S.O. 1990, c. L.12, s. 9 (1).

Broadcast libel, plea in mitigation of damages

(2) In an action for a libel in a broadcast, the defendant may plead in mitigation of damages that the libel was broadcast without actual malice and without gross negligence and that before the commencement of the action, or at the earliest opportunity afterwards, the defendant broadcast a full apology for the libel. R.S.O. 1990, c. L.12, s. 9 (2).

Evidence in mitigation of damages

10. In an action for a libel in a newspaper or in a broadcast, the defendant may prove in mitigation of damages that the plaintiff has already brought action for, or has recovered damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as that for which such action is brought. R.S.O. 1990, c. L.12, s. 10.

Consolidation of different actions for same libel

11. (1) The court, upon an application by two or more defendants in any two or more actions for the same or substantially the same libel, or for a libel or libels the same or substantially the same in different newspapers or broadcasts, brought by the same person or persons, may make an order for the consolidation of such actions so that they will be tried together, and, after such order has been made and before the trial of such actions, the defendants in any new actions instituted by the same person or persons in respect of any such libel or libels are also entitled to be joined in the common action upon a joint application being made by such new defendants and the defendants in the actions already consolidated. R.S.O. 1990, c. L.12, s. 11 (1).

Assessment of damages and apportionment of damages and costs

(2) In a consolidated action under this section, the jury shall assess the whole amount of the damages, if any, in one sum, but a separate verdict shall be taken for or against each defendant in the same way as if the actions consolidated had been tried separately, and, if the jury finds a verdict against the defendant or defendants in more than one of the actions so consolidated, the jury shall apportion the amount of the damages between and against the last-mentioned defendants, and the judge at the trial, in the event of the plaintiff being awarded the costs of the action, shall thereupon make such order as he or she considers just for the apportionment of the costs between and against such defendants. R.S.O. 1990, c. L.12, s. 11 (2).

Application

(3) This section does not apply where the libel or libels were contained in an advertisement. R.S.O. 1990, c. L.12, s. 11 (3).

Security for costs

12. (1) In an action for a libel in a newspaper or in a broadcast, the defendant may, at any time after the delivery of the statement of claim or the expiry of the time within which it should have been delivered, apply to the court for security for costs, upon notice and an affidavit by the defendant or the defendant’s agent showing the nature of the action and of the defence, that the plaintiff is not possessed of property sufficient to answer the costs of the action in case judgment is given in favour of the defendant, that the defendant has a good defence on the merits and that the statements complained of were made in good faith, or that the grounds of action are trivial or frivolous, and the court may make an order for the plaintiff to give security for costs, which shall be given in accordance with the practice in cases where a plaintiff resides out of Ontario, and the order is a stay of proceedings until the security is given. R.S.O. 1990, c. L.12, s. 12 (1).

Where libel involves a criminal charge

(2) Where the alleged libel involves a criminal charge, the defendant is not entitled to security for costs under this section unless the defendant satisfies the court that the action is trivial or frivolous, or that the circumstances which under section 5 entitle the defendant at the trial to have the damages restricted to actual damages appear to exist, except the circumstances that the matter complained of involves a criminal charge. R.S.O. 1990, c. L.12, s. 12 (2).

Examination of parties

(3) For the purpose of this section, the plaintiff or the defendant or their agents may be examined upon oath at any time after the delivery of the statement of claim. R.S.O. 1990, c. L.12, s. 12 (3).

Order of judge respecting security final

13. An order made under section 12 is final and is not subject to appeal. R.S.O. 1990, c. L.12, s. 13.

Verdicts

14. On the trial of an action for libel, the jury may give a general verdict upon the whole matter in issue in the action and shall not be required or directed to find for the plaintiff merely on proof of publication by the defendant of the alleged libel and of the sense ascribed to it in the action, but the court shall, according to its discretion, give its opinion and directions to the jury on the matter in issue as in other cases, and the jury may on such issue find a special verdict, if they think fit so to do, and the proceedings after verdict, whether general or special, shall be the same as in other cases. R.S.O. 1990, c. L.12, s. 14.

Agreements for indemnity

15. An agreement for indemnifying any person against civil liability for libel is not unlawful. R.S.O. 1990, c. L.12, s. 15.

Slander

Slander affecting official, professional or business reputation

16. In an action for slander for words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication thereof, it is not necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of the plaintiff’s office, profession, calling, trade or business, and the plaintiff may recover damages without averment or proof of special damage. R.S.O. 1990, c. L.12, s. 16.

Slander of title, etc.

17. In an action for slander of title, slander of goods or other malicious falsehood, it is not necessary to allege or prove special damage,

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication,

and the plaintiff may recover damages without averment or proof of special damage. R.S.O. 1990, c. L.12, s. 17.

Security for costs

18. (1) In an action for slander, the defendant may, at any time after the delivery of the statement of claim or the expiry of the time within which it should have been delivered, apply to the court for security for costs, upon notice and an affidavit by the defendant or the defendant’s agent showing the nature of the action and of the defence, that the plaintiff is not possessed of property sufficient to answer the costs of the action in case judgment is given in favour of the defendant, that the defendant has a good defence on the merits, or that the grounds of action are trivial or frivolous, and the court may make an order for the plaintiff to give security for costs, which shall be given in accordance with the practice in cases where a plaintiff resides out of Ontario, and the order is a stay of proceedings until the security is given. R.S.O. 1990, c. L.12, s. 18 (1).

Examination of parties

(2) For the purpose of this section, the plaintiff or the defendant may be examined upon oath at any time after the delivery of the statement of claim. R.S.O. 1990, c. L.12, s. 18 (2).

Libel and Slander

Averments

19. In an action for libel or slander, the plaintiff may aver that the words complained of were used in a defamatory sense, specifying the defamatory sense without any prefatory averment to show how the words were used in that sense, and the averment shall be put in issue by the denial of the alleged libel or slander, and, where the words set forth, with or without the alleged meaning, show a cause of action, the statement of claim is sufficient. R.S.O. 1990, c. L.12, s. 19.

Apologies

20. In an action for libel or slander where the defendant has pleaded a denial of the alleged libel or slander only, or has suffered judgment by default, or judgment has been given against the defendant on motion for judgment on the pleadings, the defendant may give in evidence, in mitigation of damages, that the defendant made or offered a written apology to the plaintiff for such libel or slander before the commencement of the action, or, if the action was commenced before there was an opportunity of making or offering such apology, that the defendant did so as soon afterwards as the defendant had an opportunity. R.S.O. 1990, c. L.12, s. 20.

Plaintiff’s character or circumstances of publication

21. In an action for libel or slander, where the statement of defence does not assert the truth of the statement complained of, the defendant may not give evidence in chief at trial, in mitigation of damages, concerning the plaintiff’s character or the circumstances of publication of the statement, except,

(a) where the defendant provides particulars to the plaintiff of the matters on which the defendant intends to give evidence, in the statement of defence or in a notice served at least seven days before trial; or

(b) with leave of the court. R.S.O. 1990, c. L.12, s. 21.

Justification

22. In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. R.S.O. 1990, c. L.12, s. 22.

Fair comment

23. In an action for libel or slander for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. R.S.O. 1990, c. L.12, s. 23.

Fair comment

24. Where the defendant published defamatory matter that is an opinion expressed by another person, a defence of fair comment by the defendant shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion. R.S.O. 1990, c. L.12, s. 24.