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THE LAW
OF DEFAMATION
AND THE INTERNET by |
Update
10
Bahlieda v Santa, ONSC 02-0017
(
Canadian decision concerning whether placing
material on a website constitutes a ‘broadcast’ for the purposes of the Libel
and Slander Act 1980 (
Section 1(1) of the Libel and Slander Act 1980 (
the dissemination of writing,
signs, signals, pictures and sounds of all kinds intended to be received by the
public either directly or through the medium of relay stations, by means of,
(a)
any form of wireless radioelectric communication utilizing Hertzian
waves, including radiotelegraph and radio telephone, or
(b)
cables, wires, fibre-optic linkages or
laser beams,
and ‘broadcast’ has a corresponding
meaning.
By s 5(1) of the Libel
and Slander Act 1980 (Ontario), ‘[n]o 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 delivering it to a grown-up person at the
chief office of the defendant.’
By s 6 of the same Act, ‘[a]n action for a libel in a
newspaper or in a broadcast shall be commenced within three months after the
libel has come to the knowledge of the person defamed, but, where such an
action is brought within that period, the action may include a claim for any
other libel against the plaintiff by the defendant in the same newspaper or the
same broadcasting station within a period of one year before the commencement
of the action.’
The plaintiff brought a defamation action against the
defendant in the Ontario Superior Court of Justice arising out of material
published on the defendant’s website. The defendant brought an application
before Pierce J for dismissal of part of the plaintiff’s claim on the ground
that the plaintiff had not given the notice required by s 5(1) or
commenced her action within the time required by s 6 of the Libel and Slander Act. The question for
Pierce J was whether the placing of material on a website constituted a
‘broadcast’ for the purposes of the Libel
and Slander Act.
Pierce J concluded that the placing of the material on the
defendant’s website did constitute a ‘broadcast’. Her Honour said:
The purpose of broadcasting definition [sic] is to single
out information which is transmitted to mass audiences, where maximum harm to
reputation can be done. Traditionally, this involved radio and television…
The court must recognize and give effect to the purpose of
the Act, including the mischief it seeks to ameliorate. In this Act, that harm
is widespread damage to reputation when a mass audience receives defamatory
material. That is the rationale for applying particular rules to broadcasting
that do not apply to other forms of defamatory communication. It is the reason
for the notice period, and the limitation found in sections 5 and 6…
The internet, sometimes more than traditional broadcast
media, reaches a mass audience. It uses the same infrastructure common to radio
and television, as set out in the Act. I conclude therefore, that placing
material on the internet, via a website, where it may be accessed by a large
audience, constitutes broadcasting with the meaning of the Libel and Slander Act.
As the plaintiff had not given the notice required by
s 5(1) or commenced her action within the time required by s 6 of the
Libel and Slander Act, the action was
statute barred. Pierce J said that her conclusion was not affected by the fact
that the matter complained of had continued to be accessible on the defendant’s
website well after the date of first publication, because time runs under
Ontario law (unlike English law) from the date the libel came to the attention
of the defamed person.
As to the meaning of ‘broadcasting’ in Australian law,
which is relevant when determining whether online material has been deemed to
have been published in permanent form for the purposes of s 206 of the Broadcasting Services Act 1992 (Cth), see
The Law of Defamation and the Internet,
paragraphs 4.15–4.22.
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©
Matthew Collins 2003