Magazine Industry Resource Library
Law - Publishing
Column for June 2005
Limiting Libel Risks for Online Magazine Publishers

David Sherriff-Scott
Borden Ladner Gervais LLP
June 2005

Libel law has been slow to adjust to the development of the Internet, but recent cases show an increasing tendency of the courts to view, sometimes with alarm, the extent of damage the Internet can cause. For example, the Ontario Court of Appeal very recently overturned a trial judge’s findings concerning the appropriate amount of damages in a case. In Barrick Gold Corp. v. Lopehandia, Ontario’s highest court found that a trial judge had made a major error by concluding that defamatory statements were not significantly damaging to the plaintiff because they had been published on the Internet. The Court of Appeal felt that the trial judge had made an error by not taking into account the unique potential of the Internet to do significant damage. Therefore, the Court of Appeal quadrupled the trial judge’s damage award and in doing so said,

“is there something about defamation on the Internet…”cyber libel”, as it is sometimes called…that distinguishes it from a more traditional medium for the purposes of damages? My response to that question is, “yes”…The standard factors to consider in determining damages for defamation include the plaintiff’s position in standing, and in the community, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant for publication through judgment, and any evidence of aggravating or mitigating circumstances….In the Internet context , these factors must be examined in light of what one judge has characterized as the “ubiquity, universality and utility” of that medium…Therefore, in the Internet context the mode of publication must be considered carefully. Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching…Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its potential for being taken at face value, and its absolute and immediate world-wide ubiquity and accessibility. The mode and extent of publication are therefore particularly significant considerations in assessing damages in Internet defamation cases.”

Considering that decisions of the Ontario Court of Appeal are persuasive precedents in other provinces and are binding on all Ontario courts, these comments should be viewed with concern by those conducting business on the Internet, particularly those whose business it is to provide a vehicle for communications, news information, or opinion.

How then, can Internet magazine or other publishers protect themselves or limit their risk of exposure to defamation lawsuits? Aside from insurance, there are a number of simple steps which can be taken to ensure that online publishers have access to a number of statutory protections in libel and slander legislation across the country which apply to traditional newsprint, radio and television media. The benefits of these statutory protections cannot be overstated, particularly in a climate where defamation damage awards have significantly increased over the last decade and the courts are expressing concern about the Internet’s unique potential to do damage.

All provinces in Canada have statutes dealing with defamation (called either Libel and Slander or Defamation Acts) which provide a method for publishers to limit their exposure to defamation claims. Each of the Acts sets up a scheme in which publishers must be given specific written notice within rigid time lines about an allegation that a publication contains a defamatory statement. These notices must contain the details of the defamation and an opportunity to apologise within a prescribed statutory time period. If a publisher gets such a notice and publishes an apology in conformance with the statute, a plaintiff’s potential damage claims are minimized, often to the point where a lawsuit is not viable. For example, Ontario’s Libel and Slander Act provides that no action can be maintained against a newspaper or broadcast unless a plaintiff, within six weeks after the defamatory material came to its knowledge, gives the defendant a specific, written notice specifying the defamatory matter complained of, which has to be personally served.

The Libel and Slander Act also provides that any lawsuit must be commenced within three months of the time the initial publication came to the attention of the plaintiff. If a plaintiff does not comply with either of these requirements any lawsuit is barred by statue. These “limitation periods”, as they are known, are not subject to exceptions.

Moreover, when a publisher is given a written notice, it has an opportunity to investigate the issue and to publish an apology where warranted. In the case of a daily newspaper, for example it must publish that apology within three days after it receives the notice, or in the case of a publication which issues more infrequent editions, the apology must be published “in the next regular issue”.

If an apology is published, a plaintiff can only recover its actual, provable damages. In libel law there are a number of different kinds of damages. First there are “general damages” which are damages for pain, suffering and embarrassment in libel cases. These are not trivial and can range in the hundreds of thousands of dollars. Next is what the law calls “special damages”. These represent actual, provable financial loss. For example, if a business can show a loss of profit because a specific customer departed in view of a concern about a defamatory statement. This last form of damages is difficult to prove in defamation cases because the effect of defamation is typically insidious. Therefore, if a publisher complies with the statutory requirements and publishes an apology where warranted, this will limit a plaintiff’s case to “special damages” which are, in most cases, difficult if not impossible to prove.

In short, the benefit of these provincial acts is that they provide rigid limitation periods. Secondly, once a notice is given to a publisher, an opportunity to investigate the claim exists and if warranted, an apology can be issued. This will shut down the potential for a large general damage award. In practical terms it will actually mean an end to a potential lawsuit.

The question is how do online publishers qualify for these benefits of statutory protections? The answers lie within each of the provincial defamation Acts which define the kind of media to which they apply. For example, each Act commences with a definition section which defines the kind of “newspapers” or “broadcasts” to which they apply. In Ontario a “newspaper” is defined in the Libel and Slander Act as “a paper containing public news, or 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 12 times a year”. A broadcast is defined as “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 any form of:

- wireless, radio, electric communication utilizing hertzian waves, including radio, telegraph and radio telephone; or
- cables, wires, fibre optic linkages or laser beams.

These definitions are similar throughout various provincial defamation statutes in the rest of Canada. Ontario’s definition of “broadcast” is the most potentially inclusive of online publications.

Not surprisingly there has been litigation which has reached the Ontario Court of Appeal to determine whether online publications are “broadcasts” or “newspapers” within the meaning of the Ontario Libel and Slander Act.

In Weiss v. Sawyer, the Court of Appeal dealt with a defamation case against, among others, an online magazine. The preliminary question was whether or not the defendant could have the benefit of the protections in the Libel and Slander Act. Therefore the Court had to decide whether the online magazine fit the definition of either a “broadcast” or “newspaper” in the Libel and Slander Act. If it did not, the Act would not apply and the publisher was not entitled to limit the plaintiff’s claims to actual damages. The question as the Court framed it was: “section 5(1) applies only to the publication of a libel in a newspaper or in a broadcast as defined by the Act. Is the Realms website a ‘newspaper’, a ‘broadcast’, or both?”

The Court of Appeal found that the definition of “newspaper” in the Act was sufficiently broad to include an online magazine publication. The Court stated that:

“The Act defines a newspaper in part as “paper” containing certain categories of information for distribution to the public. I think the word “paper” is broad enough to encompass a newspaper which is published on the Internet. If I am wrong in my conclusion the word “paper” is to be given a more restrictive meaning, i.e. the sustenance upon which a newspaper is ordinarily printed, then arguably section 5(1) is not available to the defendant. However, such a result would be clearly absurd. It would mean that if an action was commenced against a newspaper, without serving a section 5(1) notice, it would be barred in relation to the newsprint publication, but not so barred in relation to the online publication, unless of course it fell within the definition of broadcast.”

The Court of Appeal also said that: “the purpose and scheme of the notice provisions in the Libel and Slander Act, are to extend its benefits to those who are ensued in respect of a libel in a newspaper irrespective of the method or technique of publication.” Therefore the Court found that “a newspaper is no less a newspaper because it appears in an online version”.

The use of the word “newspaper” is really meaningless. The definition includes a magazine as long as it is something that has the categories of information referred to in the definition section of the Act and is published at the required intervals, i.e. not less than 12 times a year.

The Court of Appeal in Weiss, declined to determine whether or not the Internet magazine was “a broadcast” within the meaning of the Act because the expert evidence before the Court at the time of the hearing was conflicting. Therefore, that question remains undecided.

The decision opens the door to online publishers to obtain the benefit of the statutory protections in various Defamation Acts. However, as the Court in Weiss noted, there are other requirements in these statutes which must be met. For example, in order to have the benefit of these statutory protections a publisher must also include the “proprietor and publisher and the address of the publication” and this information must be posted at the “head of the editorials” or on the “front page of the newspaper.” The Courts have interpreted these requirements generously by concluding that if this information is published in a significantly prominent place then it will be sufficient to comply with the Act.

With respect to broadcasts, the various Defamation Acts also require that if a person who claims to have been defamed writes to the broadcaster and requests the name and address of the owner or proprietor and publisher, then the broadcaster must supply that information by way of a registered letter within 10 days or less of the request. If not, the benefits of the Act are not available.

In summary, in order to be treated as a “newspaper” under a Defamation Act and to obtain the benefits available under such legislation, online magazines or publishers must:

- be published not less than 12 times a year (monthly);
- contain public news, intelligence or occurrences, or remarks or observations on those or principally advertisements printed for distribution to the public; and
- name the proprietor and publisher as well as the address of the publication prominently stated and preferably at the head of the editorial page if one is in the publication or at the front page, of the publication.

To preserve your chance of being treated as a broadcaster within the meaning of the Defamation Acts, whenever an online publisher receives a request to identify the owner, proprietor or publisher as well as the publication’s address, the publisher must provide that information by way of registered letter within 10 days of receipt of the request.

Although the last requirement only applies to broadcasters, and the Courts have not yet decided whether online publications fit the ”broadcast” definition, online magazines should at least attempt to comply with such written requests to best preserve their options.

In the face of today’s economic and legal realities, insuring that these basic statutory protections are available is one helpful tip to survive potential defamation litigation.