By Brian N. Radnoff and Amy P. Archer
The unprecedented proliferation of electronic communication, particularly through the Internet, has changed the way we publish and consume information. This has, in turn, made the role of judges in actions for defamation in Canada increasingly important as these changes strain and stretch the parameters of legislation that was drafted before the Internet was created. In Barrick Gold Corp. v. Lopehandia,1 (“Barrick”) the Ontario Court of Appeal acknowledged the unique nature of defamation on the Internet, given the “ubiquity, universality and utility” of the medium.2 The judiciary's struggle to apply archaic laws to changing realities is not new. What is unique about the impact of the Internet on defamation is the speed at which our changing world has made existing legislation and traditional common law approaches increasingly obsolete.
Recent decisions from the Supreme Court of Canada indicate that Canadian courts can take jurisdiction over defamation disputes when electronic communications originate from outside Canada, particularly the US. Given that Canada, relative to the US, is a plaintiff-friendly defamation jurisdiction, it is likely that more electronically-based defamation litigation will be commenced in Canada. Therefore, it is imperative that the law start to catch up with the technology.
GENERAL DEFAMATION PRINCIPLES
In order to succeed in an action for defamation, the plaintiff must prove:
- that the impugned words were defamatory, in that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
- the words referred to the plaintiff; and
- the words were published, in that they were communicated to at least one person other than the plaintiff.3
Defenses to defamation include: truth or justification, absolute privilege, qualified privilege, fair comment and responsible communication. Truth is a complete defense to any defamation claim.6 Absolute privilege refers to occasions when individuals have absolute immunity from defamation claims, such as statements made in the legislature.7 Qualified privilege refers to a person acting under some legal, moral, or social duty in stating what he or she believes to be true about another person to a listener who has a corresponding duty or interest in receiving the communication, such as a complaint to a regulatory body.8 Fair comment applies when the words are expressions of opinion on a matter of public interest, rather than expressions of fact.9 Responsible communication is a relatively new defense meant primarily for journalists reporting fairly and responsibly on issues of public interest.10 Actual or express malice, which the plaintiff must prove, can defeat these defenses, other than truth.11
DEFAMATION AND INTERNET PUBLICATIONS
It is unclear whether different legal considerations should be applied when determining if a statement is defamatory when it is published online. In assessing a defamation claim, Canadian courts must consider all the circumstances of the case, including the audience to whom the words were published and the manner in which they were presented.12 Furthermore, it is necessary to consider the impact that a reasonable reader would consider the words to have on an individual's reputation. Whether this impact changes when the words are published over the Internet remains to be determined by Canadian courts.
In Baglow v. Smith (“Baglow”) 13 the Ontario Court of Appeal addressed the unique nature of Internet communications in a case involving allegations of defamatory comments made over the Internet. The Court overturned the summary dismissal of a defamation action involving a comment made on a political blog, in which the defendant referred to the plaintiff as “one of the Taliban's more vocal supporters.”14 The lower court granted a motion for summary judgment after finding that the statement was incapable of being defamatory since the words lacked the “sting of liable” in the context of a political blog “where insults were regularly treated as part of the give and take of debate.”15
The Court of Appeal pointed to the possibility that, in the context of a robust political exchange on a blog, there may be a “broad range of tolerance for hyperbolic language” but noted that there had been limited judicial consideration of new questions arising from the “unique milieu” of the Internet.16 The Court of Appeal overturned the lower court's finding on the ground that these questions, such as whether statements published on the Internet have a diminished impact on a person's reputation, should be addressed with the benefit of a full evidentiary record and expert opinion.17
Canadian courts have also struggled with the concept of publication in the context of Internet defamation. For example, a recent Supreme Court of Canada decision considered whether a hyperlink to defamatory material constituted publication of that material. Traditionally, a publication means any act “which has the effect of transferring the defamatory information to a third person.”18 In Crookes v. Newton,19 the Supreme Court of Canada declined to strictly apply this definition to hyperlinking.20 Instead, the Court relied on recent developments in the law in which some acts are found to be so passive that they should not be considered publication.21 In particular, the Court was guided by American and Canadian cases in which the act of referring to defamatory material, or to where it could be found, did not constitute publication.22
The Court found that hyperlinks share the same relationship with the content to which they refer as do references.23 First, the Court noted that both hyperlinks and references communicate that something exists, but do not, by themselves, communicate its content. Second, both require some act on the part of a third party before he or she gains access to the content. The Court concluded that “the fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.”24
CROSS-BORDER ISSUES AND JURISDICTION IN AN ELECTRONIC WORLD
The decision where to commence a defamation action is complicated when the defamatory material was published over the Internet. A publication sent from a computer in one jurisdiction may be read by people in numerous other jurisdictions. Although a publication may have a stronger connection to one jurisdiction, the harm to a plaintiff's reputation may be felt more acutely in another. As a result, the traditional approach to determining which court should have jurisdiction may no longer be appropriate in these cases. At a minimum, given more liberal defamation law in Canada compared to the US, questions of “libel tourism” arise.
In Canada, a court may exercise jurisdiction only if it has a “real and substantial connection” with the subject matter of the litigation. If that is established, a court may still apply the forum non conveniens analysis to determine that it should nonetheless decline to exercise its jurisdiction on the ground that a court of another jurisdiction is clearly a more appropriate forum to hear the action.25
In Breeden v. Black (“Black”)26 the Supreme Court of Canada considered the appropriate jurisdiction for a multistate defamation claim. The Supreme Court unanimously held that the Ontario Superior Court had jurisdiction over libel claims that were made by Conrad Black against certain directors, advisors and a Vice President of Hollinger International Inc. (“Hollinger”). Six actions were brought against a total of ten defendants, one of whom lived in Israel, one of whom lived in Ontario and the remainder of whom lived in the US. Black alleged that the defendants published press releases and reports on Hollinger's website that contained defamatory statements and that they had been downloaded, read and republished in Ontario by three newspapers. Although these newspapers were not named defendants, Black commenced his claims in Ontario on the basis that the damage to his reputation occurred in Ontario.
The Supreme Court found that there was a real and substantial connection between Ontario and the libel actions. Justice LeBel noted that, “… the tort of defamation occurs upon the publication to a third party – that is, when the alleged defamatory material is read or downloaded by someone other than the plaintiff or publisher.”27 The Supreme Court went on to consider if the Ontario court should, nevertheless, refuse to hear the case. The Court concluded that Illinois was not a clearly more appropriate forum than Ontario in light of the combined effect of the relevant facts, including the particular weight of the alleged harm to Black's reputation in Ontario.28
Although Black involved multiple publications in Ontario, it will not always be necessary that there be a “substantial publication” of the allegedly defamatory material in the jurisdiction. This was confirmed by the Supreme Court of Canada in a companion decision to the Black decision, Editions Ecosociete Inc. v. Banro Corp.29 The Supreme Court noted:
The defamation law of Canada has not adopted the substantial publication standard. In Canada, the evidentiary standard for proving publication remains the traditional common law standard, according to which a single instance of a publication is sufficient for the tort to crystallize.30The Supreme Court went on to acknowledge the importance of reputation in defamation actions. In a statement made in obiter, the Court suggested that, instead of focusing on where the tort occurred (the lex loci delicti), it may be more appropriate in defamation cases to focus on the place of most substantial harm to reputation.31
The implication of these recent decisions on jurisdiction is that Canadian courts will take a liberal approach to the issue. Canadian plaintiffs will be able to sue for Internet publications originating outside of Canada where those publications can be downloaded in Canada and the plaintiff has suffered substantial harm to his or her reputation as a result. US defendants, with little or no connection to Canada, may face Canadian defamation actions.
LIMITATION PERIODS AND NOTICE REQUIREMENTS
Most Canadian jurisdictions have legislation that creates notice requirements as a precondition of bringing defamation actions against media defendants.32 These provisions were drafted before the Internet age. There is a real question regarding the scope of their application to “news” on the Internet and non-traditional media. For example, Ontario actions for defamation are subject to the legislative framework set out in the Libel and Slander Act (“LSA”).33 Under the LSA, a person seeking to bring a libel action for material published in a newspaper or in a broadcast must provide written notice to the prospective defendant within six weeks after the alleged libel has come to the plaintiff's attention. The LSA also mandates shorter limitation periods for publications in newspapers and broadcasts.34
In Shtaif v. Toronto Life Publishing Co. Ltd. (“Shtaif”),35 the Ontario Court of Appeal provided clarification on the provisions in the LSA with respect to defamation on the Internet. In Shtaif, the plaintiffs complained about the print version of a June, 2008 magazine article, but did not sue. When they became aware that a copy was available on the Internet in late August, 2008, they gave notice under the LSA and later brought an action claiming damages for defamation and negligence. The magazine responded by seeking to have the action dismissed on the ground that it was brought outside the limitation period in the LSA. The plaintiffs brought a cross-motion to amend their statement of claim to add a claim for libel in the print version of the article, contending that they could “recapture” this claim under section 6 of the LSA.36 The motion judge granted the cross-motion but dismissed the claim for libel in the print version of the article. He also dismissed the magazine's motion for summary judgment.
The Court confirmed that all of a plaintiff's claims for libel, including those “recaptured” under section 6 of the LSA, must be brought within the three-month limitation period for the libel on which the plaintiff gave notice and sued. The plaintiff cannot bring an action on one publication and then, years later, seek to amend the claim to include libels that occurred within a year prior to the commencement of the action, which is what the plaintiffs were trying to do in this case.
The Court also confirmed that the “single publication rule” does not apply in Canada. This rule prevents multiple actions arising from the same material which might be republished numerous times. The Court rejected adoption of this rule because it is inconsistent with the LSA's provisions and previous Canadian jurisprudence which confirms that every republication is a new libel. Moreover, the Court did not believe that such a rule should apply across different mediums of communication.
Unfortunately, the Court declined to determine whether an Internet publication can be a “broadcast” or “newspaper” under the LSA, thereby requiring compliance with the LSA's notice provisions. The Court held that this was an issue that should be resolved at trial.37 It is still unclear whether the definitions of “broadcast” and “newspaper” in the LSA apply to Internet publications. Under the LSA, the definition of “broadcast” and “newspaper” appears to apply to traditional media, such as a print newspaper or TV news. It is therefore uncertain whether the notice provisions and shorter limitation periods in the LSA apply to online publications, including non-traditional media. This is an important issue because the failure to give notice within the required time is a bar to bringing an action.38 Liberal notice requirements would significantly increase the occasions where notice is required and when shorter limitation periods apply, requiring plaintiffs to act quickly.
INJUNCTIONS FOR DEFAMATION IN AN ELECTRONIC WORLD
One of the many challenges posed by Internet defamation is the inherent difficulty in controlling the spread of information. The Internet has both the potential for anonymity and the wide proliferation of defamatory statements, making them harder to contain. The risk to one's reputation is exacerbated by the limited remedies available to plaintiffs.
Although damage awards are the traditional remedy in an action for defamation, they do little to stem the spread of injurious statements or to repair damage to reputation. Furthermore, damages are only available after the successful completion of a trial, which often draws more attention to the defamatory statements. Injunctive relief, although often preferable to an award for damages, is difficult to obtain, especially before a determination of the ultimate issue.
Interlocutory injunctive relief in a claim for defamation is “an extraordinary remedy, granted sparingly, in the clearest of cases and only to the extent necessary.”39 The basis for the reluctance to grant interim injunctive relief was explained by the Supreme Court of Canada in Canada (Human Rights Commission) v. Canadian Liberty Net (“Canadian Liberty Net”).40 The Court found that there is “a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded.”41 Similarly, in Beidas v. Pichler (Legassé),42 the Ontario Divisional Court emphasized the importance of freedom of expression on the Internet when considering whether to grant injunctive relief. The Court concluded:
The Internet should not be less free for expression than other media. The Internet may present unique problems and unique challenges but its use does not and should not invite unwarranted restriction of freedom of expression.43The test for an interlocutory injunction in a defamation case was set out in is set out in a 19th century English decision, Bonnard v. Perryman,44 and restated by the Supreme Court of Canada in Canadian Liberty Net. The Supreme Court found that an injunction will never be granted when the defendant has shown his intention to justify, “unless the words in question are so clearly defamatory and so obviously impossible to justify that the verdict of a jury accepting a plea of justification as a defense would of necessity have to be set aside as a perverse finding on appeal.”45
Once a defendant has been found liable for defamation, injunctive relief is more easily obtained by a plaintiff. Astley v. Verdun46 (“Verdun”) is a recent example of a permanent injunction being awarded after a finding of defamation.47 In that case, the trial judge found that it was “well-settled law that, in appropriate circumstances, a court may grant an injunction to prevent a defendant from continuing to disseminate defamatory material that affects a plaintiff's reputation”.48 She outlined two circumstances when injunctions are appropriate after findings of defamation: first, where there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; and second, where there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible.49 In Verdun, a broad injunction was granted which also applied to the defendant's Internet publications.50
In Barrick, the Ontario Court of Appeal addressed concerns about the enforceability of a permanent injunction order to stop Internet defamation. As was discussed above, an action for defamation over the Internet can be brought in a different jurisdiction from the one in which the material originated. Consequently, the defendant may not reside in the jurisdiction in which the injunction is sought. This creates problems with respect to the enforcement of such orders. The Court ultimately granted an injunction despite these difficulties.51
Issues of enforceability also arise with respect to foreign judgements. In 2010, President Obama signed the Speech Act,52 which shields American journalists, print and online publishers and bloggers from foreign lawsuits. The purpose of the law is to shield Americans from foreign defamation actions. This may make Canadian judgments and orders more difficult to enforce in the US.
Canadian courts have recognized the Internet's immense potential to damage reputation for reasons such as its “absolute and immediate worldwide ubiquity and accessibility.”53 In light of this, the traditional factors for determining damages in defamation have been reconsidered by Canadian courts. These traditional factors are: the plaintiff's position and standing, 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 from publication through judgment and any evidence of aggravating or mitigating circumstances.54
In Barrick, the Ontario Court of Appeal found that the traditional approach “may not respond adequately to the realities of the Internet world.”55 In particular, the Court emphasized the significance of the “the mode and extent of publication” in assessing damages in Internet defamation cases.56 Thus, Internet publication can result in higher damage awards in Canada than non-Internet publications.
Moreover, damages may also be increased due to the Canadian rule that any republication of a defamatory statement is a new publication and the original author may be liable for any republication.57 In Browne v. Toronto Star Newspapers Limited,58 the plaintiff sought to adduce evidence of republication in the middle of trial. Justice Lax refused to allow this evidence to be adduced because of a deficiency in the pleadings. Justice Lax did, however, note that there may be cases where a court finds the fact of publication of an article on the Internet was sufficient to raise the issue of republication by other Internet providers.59 Thus, potential for wide distribution on the Internet creates a significant risk of increased damage awards.
Canadian courts are still grappling with the fundamental changes brought about by the fact the vast majority of communication today is electronic. With respect to jurisdictional questions, it is now clear that Canadian courts will take a liberal approach to asserting jurisdiction over Internet-based claims, even when the defamatory publication originated in another jurisdiction. The most important factor in assessing jurisdiction will be the location of the harm to the plaintiff's reputation. It is also apparent that Canadian courts will seriously consider the wide dissemination of information over the Internet when assessing damages for Internet-based defamation claims. However, it is still unclear the extent to which media-based statutory requirements, particularly notification requirements and shorter limitation periods, apply to Internet-based defamation claims. The most sensible solution is for the legislation on which these issues are based, which was drafted long ago, to be updated to account for the modern world. Judges should not be required to solve all of the problems created by technological change.
- Barrick Gold Corp. v. Lopehandia,  O.J. No. 2329 (C.A.) [Barrick]
- Barrick, para. 30
- Grant v. Torstar Corp.,  3 S.C.R. 640, para. 28 [Grant]
- Grant, para. 28
- Grant, para. 29
- Vanderkooy v. Vanderkooy, 2013 ONSC 4796 (CanLII), para. 156 [Vanderkooy]
- Guergis v. Novak, 2013 ONCA 449 (CanLII), para. 449
- Vanderkooy, para. 167
- Grant, para. 31
- Grant, para. 98. It is still unclear if this defense applies to non-traditional journalism, which is ubiquitous on the Internet. If its reach extends that far, this could be a very important defense for Internet-based journalism as it does not require the publication to be accurate but for the author to act as a reasonable journalist.
- Raymond E. Brown, Brown on Defamation, 2nd ed. (Carswell: Toronto, 1999), 1-48 [Brown]
- Brown, 5-3
- Baglow v. Smith, 2012 ONCA 407 (CanLII) [Baglow]
- Baglow, para. 3
- Baglow, para. 21
- Baglow, para. 27
- Baglow, para. 36
- Crookes v. Newton,  3 SCR 269 [Crookes]
- Crookes, para. 16
- Also, see Mainstream Canada v. Staniford, 2013 BCCA 341 (CanLII), para. 46, where the British Columbia Court of Appeal considered hyperlinks in the context of the fair comment defense, which requires the comment to have a sufficient factual foundation. The Court found that whether hyperlinks in a defamatory publication on a website to other documents containing facts upon which the defamatory comment was made are sufficient will depend on the circumstances of each case. The Court found that “if the defamatory publication advises the reader that a hyperlinked document contains facts upon which the defamatory comment is based and sets out where in the document they are contained, then there may well be a sufficient reference to those facts.”
- Crookes, para. 21
- The Court specifically referred to the following three cases: MacFadden v. Anthony, 117 N.Y.S.2d 520 (Sup. Ct. 1952), Klein v. Biben, 296 N.Y. 638 (1946) and Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398 (CanLII).
- Crookes, para. 30
- Crookes, para. 30
- Breeden v. Black,  1 S.C.R. 666, paras. 20-21 [Black]
- Black, para. 20
- Black, paras. 37-38
- Editions Ecosociete Inc. v. Banro Corp., 2012 SCC 18 (CanLII) [Banro]
- Banro, para. 55
- Banro, para. 56
- The purpose of these requirements is to give the defendant an opportunity to publish a correction, retraction or apology. With the exception of British Columbia and Saskatchewan, all Canadian provinces have legislation which prescribes brief notice periods for plaintiffs seeking to bring an action for defamation in a newspaper or broadcast. See for example the Alberta Defamation Act, RSA 2000, c D-7 and the Nova Scotia Defamation Act, RSNS 1989, c 122.
- Libel and Slander Act, RSO 1990, c L.12 [LSA]
- Section 6 of the LSA provides that an action for defamation in a newspaper or broadcast must be made within three months after the libel has come to the attention of the plaintiff. This is in contrast to the two year limitation period in Ontario that applies to all other actions for defamation.
- Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405 (CanLII) [Shtaif]
- Once an action is commenced within the three month limitation period, the LSA allows the plaintiff to bring additional claims against the defendant for defamation in the same newspaper or broadcast station that occurred within a period of one year before the commencement of the action.
- This issue was previously considered in Ontario in Weiss v. Sawyer, 2002 CanLII 45064 (Ont. C.A.) (“Weiss”) and Bahlieda v. Santa, 2003 CanLII 2883 (Ont. C.A.) (“Bahlieda”). In Weiss, the Court found that the definition of “newspaper” in the LSA was broad enough to include a newspaper published on the Internet, but there was insufficient evidence to determine whether the publication could also be a broadcast. In Bahlieda, a motion for summary judgment, the Court declined to determine whether an Internet publication was a “broadcast” under the LSA and left the issue to be determined at trial.
- Merling v. Southam Inc. et al., 2000 CanLII 5621, paras. 36-37 (Ont. C.A.)
- Asselin v. McDougall, 2013 ONSC 1716 (CanLII) [Asselin]
- Canada (Human Rights Commission) v. Canadian Liberty Net,  1 S.C.R. 626 [Canadian Liberty Net]
- Canadian Liberty Net, para. 49
- Beidas v. Pichler (Legassé), 2008 CanLII 26255 (Ont. Div. Ct.) [Beidas]
- Beidas, para. 54
- Bonnard v. Perryman,  2 Ch. 269
- Canadian Liberty Net, para. 3
- Astley v. Verdun, 2011 ONSC 3651 (CanLII) [Verdun]. The authors were counsel on this case.
- The defendant, Verdun, was found to have engaged in “deliberate, concerted and relentless campaign” against the reputation of Robert Astley, a prominent Canadian businessman. Verdun maintained a blog about Astley in which he repeated many of the defamatory statements that were the subject of the defamation action.
- Verdun, para. 20
- Verdun, para. 21
- Other examples of injunctions involving Internet publication include, Hunter Dickinson Inc. v. Butler, 2010 BCSC 939 (CanLII), paras. 75-79, 81; Griffin v. Sullivan, 2008 BCSC 827 (CanLII), paras. 119-127, Cragg v. Stephens, 2010 BCSC 1177 (CanLII), para. 40 and Emerald Passport Inc. v. MacIntosh, 2011 BCSC 1581 (CanLII) (where the Court ordered an interim injunction).
- Barrick, para. 78
- Speech Act, P.L. 111-223, codified at 28 USC §§ 4101-4105
- Barrick, para. 34
- Barrick, para. 29
- Barrick para. 32
- Black, para. 34
- Black, para. 20
- Browne v. Toronto Star Newspapers Limited, 2013 ONSC 3348 (CanLII) [Brown]
- Browne, para. 14