Case Summaries

Court of Appeal Confirms Notice of Libel Required for Online Publication of Newspaper

July 13, 2017 - Jeff Saikaley

The Ontario Court of Appeal confirmed in a recently released decision that there is no distinction between the print edition and the online version of a newspaper article for the purposes of s. 5(1) of the Libel and Slander Act.

In the John v. Ballingall case, the plaintiff (a rapper who performs under the name of Avalanche the Architect), sued the Toronto Star over an article that he claimed was defamatory and that appeared on the Star’s website on December 4, 2013 and in the print edition on December 9, 2013. His claim was struck on the basis that he did not provide a Notice of Libel in accordance with s. 5(1) of the Libel and Slander Act which provides:

No action for libel in a newspaper or in a 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.

On appeal, the plaintiff argued that a Notice of Libel was not required as the article was not published in a ‘newspaper’, but rather on the Internet. Because it was not printed on physical paper, the notice requirement in the Act should not apply. The Ontario Court of Appeal disagreed. The Court held as follows:

[25]        The regime in the LSA provides timely opportunity for the publisher to address alleged libellous statements with an appropriate response that could be a correction, retraction, or apology. Now that newspapers are published and read online, it would be absurd to provide different regimes for print and online versions.

Given that the Act applied and the requirements of s. 5(1) of the Act were not complied with, the appeal was dismissed, confirming the decision to strike the action:

[38]        In addition to the appellant’s failure to comply with the six-week notice period, the three-month limitation period similarly expired long before the appellant issued his statement of claim, sixteen months later.

The takeaway is therefore to ensure that any attempt to sue for an article published online comply with s. 5(1) of the Libel and Slander Act by providing a Notice of Libel within six (6) weeks of the date of publication and commencing an action within three (3) months. Otherwise, the action may be dismissed early on.