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Column for March 2003

Libel and the Web: One Recent Case

The Ontario Court of Appeal has broadly applied the terms of the Ontario Libel and Slander Act and, in so doing, has expanded the protection for print magazines which roll out their content onto the Internet.

In its September 19, 2002 judgment in Weiss v. Sawyer (C37351), the Court held that a Plaintiff must serve a libel notice on a defendant magazine when that magazine publishes a libel in its online edition, failing which Plaintiff’s action will be dismissed. To benefit from the requirement of a notice, though, a Defendant publishing online edition must also meet other criteria discussed below.

Facts

The dispute arose between Mr. Allan Weiss, a journalist, and Mr. Robert J. Sawyer, a science-fiction writer. Mr. Weiss wrote a negative book review of Mr. Sawyer’s book. The review was published in Realms magazine described in the judgment as “a free by-weekly publication dedicated to serving the science fiction and fantasy audiences”. Mr. Sawyer objected to Mr. Weiss’ review of his book. Mr. Sawyer sent the following strongly worded items:

- an e-mail to the editors of Realms magazines;
- the contents of the e-mail were published in Realms magazine’s print edition;
- a letter to the editors of Realms magazine also appeared on the magazine’s web site; and,
- a fax to the editors of two newspapers enclosing a copy of the letter to the editors of Realms magazine.

Mr. Weiss alleged each of the above were libellous and commenced an action against Mr. Sawyer and the publisher of Realms along with three partners of the Realms’ publisher two of whom were also editors of Realms magazine. As Plaintiff, Mr. Weiss failed or forgot to serve a notice on Defendants before filing the lawsuit. Defendants argued that this omission was fatal to Mr. Weiss’ action.


Key issue – notice to Defendants for Internet publication

Section 5(1) of the Libel and Slander Act requires that a Plaintiff send a notice to a Defendant before filing a lawsuit for libel:

No action for libel in a newspaper or in 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. (underlining added)

The key issue in the litigation was therefore the fact that no notice was served on any of Defendants. Failure to serve a notice would be fatal to Plaintiff’s lawsuit if the Court decided that all four publications (print, Internet, e-mail and fax) were each a libel in a newspaper.

The Court had to analyze each of the four types of publication to decide whether or not the absence of notice was fatal to Mr. Weiss’ action for each of the four types. To do so, the Court had to consider whether each of the four types qualified as a publication in a “newspaper”. The definition of "newspaper" in the Libel and Slander Act is broad and includes magazines. The term "newspaper" is defined as:

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. (underlining added)

Court’s analysis – magazine’s online edition qualified as “newspaper”

The key issue for magazine publishers with online editions is the Court’s discussion of whether or not the notice requirement applied to the magazine’s Internet edition given that the Internet is not strictly speaking a “paper”. The Court examined whether or not Defendants were entitled to benefit from notice requirements with respect to the publication of Mr. Sawyer’s letter on Realms magazine’s web site.

The Court generously interpreted the word “paper” in the definition of “newspaper” to include material published on the Internet as falling within the meaning of a “newspaper”:

The Act defines a newspaper in part as a “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 and the word “paper” is to be given a more restrictive meaning i.e. the substance upon which a newspaper is ordinarily printed, then arguably s. 5 (1) is not available to the defendant. However, such a result would clearly be absurd. It would mean that if an action was commenced against a newspaper, without serving a s. 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”. (emphasis added)

The Court reviewed and applied rules of statutory interpretation to conclude that:

In my view, the purpose and scheme of the notice prevision in the Libel and Slander Act are to extend its benefits to those who are sued in respect of a libel in a newspaper irrespective of the method or technique of publication. To use the words of Justice Lax, “a newspaper is no less a newspaper because it appears in an online version. (emphasis added)

Because the Court arrived at the above conclusion, the Court declined to decide whether or not the online edition was a “broadcast” within the terms of the Libel and Slander Act.

As a result, the Court held that Mr. Weiss’ failure to give notice applied to the cause of action related to (a) the print magazine and (b) the Internet. The failure to give notice did not apply to the e-mail transmission or the fax transmission and Mr. Weiss as Plaintiff was entitled to continue his action for libel against Mr. Sawyer for those two transmissions.

Requirements - publish twelve times and state names and addresses

The case did not have to address other questions regarding how the Libel and Slander Act applies to online magazines. A few examples will illustrate some unanswered questions.

First, the case did not explore how to determine if an Internet edition of a magazine is “published … at least twelve times a year”. Implicit in the Court’s decision in Weiss v. Sawyer is the Court’s conclusion that Realms magazine’s web site was published “at least twelve times a year”. Magazine publishers should still be aware that their Internet edition must be “published” at least twelve times a year if they want to claim the benefit of the notice requirement discussed above. Posting a single issue once a year, without any substantial changes to that edition during the year, would not bring the online edition into the definition of “newspaper”.

Second, section 8(1) of the Libel and Slander Act provides that defendants are not entitled to the benefit of the notice requirement unless the name of the proprietor and the publisher and the address of the publication are stated either at the head of the editorials or on the front page of the newspaper. Though there were some discussion in Weiss v. Sawyer as to whether these requirements were met in a substantial manner, libel defendants should ensure that the required information is prominently displayed in the print edition as well as on equivalent sections of the Internet edition. It is possible that a libellous statement may only be published on the Internet and not in the magazine’s print edition. In that case, the absence of a notice in the Internet edition may hinge on whether or not the Internet edition itself contained the names and address requirements at the head of the editorials or on the front page (home page) of the Internet web site.

Third, the Court did not have to identify which facts will establish if an online magazine is “printed and published in Ontario”. These facts are important because section 7 of the Libel and Slander Act provides that the notice requirement applies “only to magazines printed and published in Ontario”. It may happen that a magazine’s web site is hosted by a computer located outside the province. This fact may or may not lead a Court to conclude that a Plaintiff need not send a notice because the online edition is not “printed and published in Ontario.”

Note: the reasons for judgment in Weiss v. Sawyer Ontario Court of Appeal docket C37351 (September 19, 2002) can be accessed at the Court of Appeal for Ontario web site: http://www.ontariocourts.on.ca/appeal.html.

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