Court of Appeal Reopens Issue of Internet Website as a Broadcast

The Ontario Court of Appeal decided on an Internet libel appeal, on November 22, 2003. In Bahlieda v. Santa, Justice Helen Pierce of the Superior Court of Justice held that an Internet website was a “broadcast” within the meaning of Ontario’s Libel and Slander Act. This meant that any plaintiff wishing to sue for libel on a website could not proceed unless advance notice of the action had been given to the defendant within six weeks of the discovery of libel, and an action commenced within three months of that time.

The court also held that even where defamatory information appears on a website for an extended period of time, the notice of limitation periods only run once, at the time of the plaintiff’s first discovery of the defamatory material.

The court applied these rulings to summarily dismiss the plaintiff’s libel action in respect of the defendant’s website communications.

Justices Roy McMurtry, Stephen Goudge and Eileen Gillese of the Court of Appeal, unanimously allowed the appeal, and directed that all issues in the action proceed to trial. The Court of Appeal held that, “Summary judgment applications are not a substitute for trial and thus will seldom prove suitable for resolving conflicts in expert testimony, particularly those involving difficult, complex policy issues with broad social ramifications.” The court awarded costs to the plaintiff/appellant for both the appeal and the motion below.

The appellant was represented by Peter Downard and Berkley Sells of Fasken Martineau DuMoulin LLP in Toronto, at the Court of Appeal, and was represented in the Superior Court by Stephen Kovanchak of Kovanchak Ferris Ross in Thunder Bay. The defendant/respondent was represented by Lorne Honickman and Carita Pereira of Goodman and Carr LLP.