Are you all in the clear for that questionable publication that you still host online, notwithstanding the legal threat of action received years ago? Depends where you are.
There are competing approaches regarding when the limitation period begins to run for a defamatory publication posted online, culminating in two different rules: the “single publication rule” and the “multiple causes of action rule”.
The single publication rule has been adopted by a number of American states. The rule states that a publication containing defamatory material gives rise to one cause of action for libel, which arises at the time of the first publication. The limitation period therefore begins running on the date that the defamed person first sees the publication. The continued presence of the publication online – and therefore the continued access to the publication by third parties – is irrelevant. The rationale behind this line of thought is that it would be unjust for a single publication to result in more than one lawsuit.
The English and Australian Courts, and our more western appellate Courts, have expressly rejected the single publication rule, relying instead on the multiple causes of action rule. Under the multiple causes of action rule, every publication of defamatory material creates a fresh cause of action. In effect, this means that a new defamation action arises each time a third party views the publication, and thus the limitation period for each action begins at the time of such viewing. The rationale behind the multiple causes of action rule is that as long as a defamatory publication exists on the internet, it has potential to damage the defamed person’s reputation, and therefore a remedy should follow.
This issue was first considered by a Canadian court in a case in which our firm acted. In Carter v. BC Federation of Foster Parents Assn., 2005 BCCA 398, the British Columbia Court of Appeal identified the two schools of thought and noted “the question of whether the Commonwealth or American approach is preferable has a considerable element of policy inherent in it” (para. 20), referring to the interest of having access to a remedy when one’s reputation is harmed. Ultimately, the Court of Appeal followed the Commonwealth approach and accepted the multiple causes of action rule, though identified that a plaintiff may have difficulty proving the fact of subsequent publication following their first time viewing the material.
The Court of Appeal held:
“If defamatory comments are available in cyberspace to harm the reputation of an individual, it seems appropriate that the individual ought to have a remedy. In the instant case, the offending comments remained available on the internet because the defendant respondent did not take effective steps to have the offensive material removed in a timely way. Although, for the reasons noted by the trial judge, legislatures may have to come to grips with publication issues thrown up by the new development of widespread internet publications, to date the issue has not been legislatively addressed and in default to that, I do not consider that it would be appropriate for this Court to adopt the American rule over the rule that seems to be generally accepted throughout the Commonwealth; namely, that each publication of a libel gives a fresh cause of action.”
Several years later, the Ontario Court of Appeal considered the limitation period regarding an online news article in John v. Ballingall, 2017 ONCA 579. The Court held that the limitation period “begins to run when the libel has come to the knowledge of the person defamed” (para. 36). It reached this conclusion after confirming that Ontario’s Libel and Slander Act, RSO 1990, c. L. 12 applies not only to traditional newspaper publications but also to online media publications. Section 5(1) of this legislation, which dates back to 1990, commences the running of the limitation period when the alleged libel has come to the attention of the plaintiff:
5(1) 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. [emphasis added]
The Court of Appeal went on to state that the statutory requirement of notice under s.5(1) of the Act operates to allow the media defendant to be advised of the offending remarks, so that it can further investigate and amend the publication, issue an apology, or otherwise mitigate damages.
The Court further found on the facts of the case that not only the six-week notice period expired, but also the three-month limitation period set out in Ontario’s Libel and Slander Act.
A more recent Canadian decision on this issue comes from the Alberta Court of Appeal in AARC Society v. Canada Broadcasting Corporation, 2019 ABCA 125. In this case, after referring to Carter, Mr. Justice Wakeling, writing for the majority, considered it settled law that the multiple causes of action rule applies in Canada. He therefore relied on this rule, stating at para. 67:
Every day that a defamer allows defamatory material to remain on a website over which the defamer has control and a third party – not the defamer or the defamee – sees or hears the defamatory material, the defamee has a new cause of action. It follows that there is a different limitation period for each action.
Wakeling J. reasoned that “the harm is caused when the third party sees or hears the statement” (para. 68), which is reminiscent of Carter. In contrast to Wakeling J.’s decision, the dissenting judgment of Mr. Justice McDonald favored the approach in John to the approach in Carter, while noting that “appellate courts in Canada are currently divided on whether online defamation resets the limitation period each day” (para. 146). The dissent did not give regard to the aforementioned statutory interpretation issue in John.
What we are left with in Canada are three Court of Appeal decisions: two following the Commonwealth approach, and one following relevant Ontario legislation which had the effect of taking an American approach to the issue.