Introduction
Over time, Canadian provincial legislation regulating defamation has been updated to incorporate modern communication methods. However, since most of this legislation does not explicitly address the Internet, judges are often required to draw parallels between Internet communications and traditional media forms, such as newspapers and broadcasts, that are covered by the legislation. The determination of whether Internet communication constitutes “broadcasting” is a crucial issue with significant implications for defamation law.
Defamation legislation often distinguishes between dissemination through popular media like newspapers and broadcasts, and dissemination through other means. In all provincial jurisdictions, broadcasted communications are considered published, which is a crucial element in proving defamation. If Internet communications are deemed to be broadcasts by analogy, then plaintiffs would not need to demonstrate that the defamatory statements were communicated to third parties, which would significantly facilitate establishing the defamation tort.
Some defenses against defamation may also hinge on the interpretation of the term “broadcast.” For instance, the qualified privilege defense, which offers legislative protection for fair and accurate reporting of public assembly and municipal authority meeting proceedings, might necessitate the report to be broadcast or appear in a public newspaper.
At first glance, one might reasonably assume that Internet communications fall within the scope of broadcasting. However, the reasons behind the implementation of special broadcast rules in defamation legislation might create some hesitance in directly comparing traditional broadcasting with the Internet.
Case Studies in Defamation Law and Internet Communications
In one of the earliest Canadian cases that explored whether Internet communication was considered a broadcast within the context of defamation law, the definition of “broadcasting” in an insurance policy was examined. In Reform Party of Canada v. Western Union Insurance Co., the petitioner sought to enforce an insurance policy provision after being sued for defamation resulting from an article posted on their website. The insurance company denied coverage, arguing that the website posting was an exception under the policy. The British Columbia Supreme Court determined that the website posting constituted “publishing” or “broadcasting” activities by the petitioner, and therefore fell outside the policy’s coverage. The British Columbia Court of Appeal agreed that posting comments on a webpage constituted a publishing activity but hesitated to extend the meaning of “broadcasting activities” in an insurance contract to include Internet messages when even broadcasting legislation did not explicitly do so.
In Braintech, Inc. v. Kostiuk, the British Columbia courts could have considered whether Internet communications are broadcasts under British Columbia’s Libel and Slander Act, but they did not do so. Instead, the British Columbia Court of Appeal ruled that British Columbia courts did not have to enforce a Texas judgment against a British Columbia resident who allegedly defamed the plaintiff in a posting on an Internet bulletin board. The court’s reasoning focused on the lack of evidence that the postings were actually read in Texas, emphasizing that the mere possibility of being read did not equate to publication. The court did not discuss whether the Act’s section 2, which states that defamatory words in a broadcast are considered published and constitute libel, applied to Internet communications.
Procedural Implications of Defining Internet Communications as Broadcasts
The determination of whether Internet communications are considered broadcasts could have significant procedural implications in defamation actions. For example, Ontario’s Libel and Slander Act sections 5 and 7 state that no action may be taken for libel contained in a broadcast from a station in Ontario unless the plaintiff has notified the defendant in writing of the matter complained of within six weeks after learning of the alleged libel. Additionally, the plaintiff must commence an action for a libel that has been broadcast within three months of becoming aware of the libel.
The potential consequences of equating Internet communications with broadcasts in applying these rules were demonstrated in a 2003 Ontario case, Bahlieda v. Santa. In this instance, an Ontario Superior Court judge found that material placed on a website is “broadcast” within the meaning of the province’s Libel and Slander Act, and therefore dismissed the action for failure by the plaintiff to comply with sections 5 to 7 of the Act. However, the Ontario Court of Appeal overturned the decision, noting that section 7 of the Act requires that the broadcasts be from a station in Ontario, and that the lower court had made no finding of fact in that regard. The Court of Appeal also noted that conflicting expert opinion was given as to whether the word “dissemination” should apply to information distributed by the Internet and whether Internet publication is immediate.
It remains unclear whether the Court of Appeal overturned the Superior Court decision on the basis that it substantively disagreed with the conclusions of the lower court, or that the summary proceeding conclusion was not appropriate where conflicting expert opinion was presented.
More recently, the Ontario case of Stancer Gossin Rose LLP v. Atas has provided additional insight into the matter. In this case, Justice Corbett highlighted that Ontario’s Libel and Slander Act contains a technical and exhaustive definition of “broadcast,” which was intended to cover publications on radio and television when passed in 1958. The Supreme Court of Canada, in Reference re Broadcasting Act, found that an internet communication was not necessarily a “broadcast” and refused to include internet service providers within the statutory definition of “broadcasting” in the federal Broadcasting Act.
In Stancer Gossin Rose LLP v. Atas, the courts upheld the position that expert evidence is required to determine whether any technology, including the internet, meets the definition of “broadcast.” This approach was confirmed by the Divisional Court in Nanda v. McEwan, where the issue involved the application of the LSA to defamatory postings on the social media application ‘Whatsapp’. Justice Ricchetti stated: “These authorities make it clear that there must be clear, ample evidence for the court to make the determination whether the distributed statement(s) at issue in the particular case constituted a ‘broadcast’ under the Act.”
Conclusion
In conclusion, the classification of Internet communications as broadcasts in the context of Canadian defamation law remains an unsettled issue, and the more recent Ontario case of Stancer Gossin Rose LLP v. Atas emphasizes the importance of expert evidence in such cases. The courts have yet to provide a clear, definitive answer. As the digital age continues to evolve, it is crucial for legislators and courts to address this question and clarify the rules surrounding Internet communications and defamation law.
The consequences of defining Internet communications as broadcasts can have significant implications for defamation actions. For example, this classification could require the introduction of expert evidence to determine whether a specific technology, including the Internet, meets the definition of “broadcast.” Furthermore, it could impact the availability of certain defences against defamation and the procedural rules that govern defamation cases. As the Internet becomes an increasingly prominent medium for communication, it is essential for lawmakers and the judiciary to keep pace with these changes and adapt defamation law to suit the evolving digital landscape.
