In John v. Ballingall, 2017 ONCA 579, Justice Mary Lou Benotto said it would be “absurd” to have different laws that apply to both online and print editions of newspapers.
The case relates to a Toronto rapper, Darren John, who sued reporter Alex Ballingall, Toronto Star Newspapers and the Torstar Corporation.
John — a rapper who performs as Avalanche the Architect — launched the legal action after an online article and a print article ran in December 2013 addressing how John had been charged with uttering threats to cause death bodily harm, and criminal harassment for rap lyrics in one of his songs.
His claim was dismissed for not complying with a six-week notice period and three-month limitation period under the Libel and Slander Act, but John launched an appeal arguing the Act did not apply to online articles, and that instead, a two-year limitation period under the Limitations Act should be applied instead.
However, the appeal failed.
“The regime in the [Libel and Slander Act] provides timely opportunity for the publisher to address alleged libellous statements with an appropriate response that could be a correction, a retraction, or apology. Now that newspapers are published and read online, it would be absurd to provide different regimes for print and online versions,” said the ruling. It ultimately concludes the Libel and Slander Act applies and therefore dismisses the appeal.
“The appellant submits the online version of the article is not published ‘in a newspaper’ because there is no paper. He argues that because it is not printed on physical paper, it is excluded from the [Libel and Slander Act]. Further, he submits the legislature clearly intended not to include online versions of a newspaper because there has been no amendment to the [Act] to cover this point,” said the ruling. “I do not agree.”
Omar Ha-Redeye, a co-counsel for John, says there are “significant problems” with the court’s findings that newspaper articles in print and online are the same under the law.
He points out the Legislation Act defines a newspaper as being “printed in sheet form” — which he says does not apply to online publications.
The Libel and Slander Act doesn’t adequately address online publications, he says.
“This interpretation of the Libel and Slander Act means that if there is something defamatory online by any entity that could be defined as a newspaper — and we don’t know what that definition will mean after this decision — that there will be a very, very strict notice requirement and a stricter limitation period and not adhering to those requirements under the Act will result in them losing their right of action,” he said.
He said a decision is yet to be made if they will seek leave for appeal.
Kaley Pulfer, an associate with Blake, Cassels & Graydon LLP who represented the defendants, said “in a world where virtually all newspapers and other media publish their content online, this ruling eliminates any doubt that newspapers in Ontario are entitled to the same protections from the Libel and Slander Act when they publish their content online as when they publish in print.”
“These protections are vital to preventing libel chill and fostering a free press,” she said, in an e-mail statement.
Pulfer says there are important takeaways from the ruling.
“The first is that the Libel and Slander Act applies to newspaper articles published on the internet. Second, the court confirmed that legislation should be interpreted in a manner consistent with evolving technologies — so, where the purpose of the legislation is to protect newspapers, the court held it would be absurd to limit those protections to old technology (the printing press) when most newspapers these days also publish on the Internet,” she said.
Pulfer said the ruling also provided crucial direction on the “multiple publication rule” in Canada, which the ruling defines as the idea “when an alleged libel is republished across different mediums, including the Internet, those republications are treated as distinct libels.”
Pulfer added that the ruling confirmed “that the short limitation periods for newspapers are triggered when the plaintiff ‘discovers’ the online publication, and do not restart every day the publication remains on the internet. . .”
Gil Zvulony, a Toronto lawyer with experience with libel and defamation claims, said the Libel and Slander Act has been applied to different internet publications for almost twenty years, and been the subject of multiple decisions.
“Since the rise of the internet, courts have grappled with the arcane language of the LSA and its application to internet postings,” he said.
“As a result, there has been much uncertainty in this area of law and too many resources have been wasted in questioning the application of an ancient statute to the internet age. This case is another example of such an attempt.”