An Online Newspaper Is Not a Newspaper

Newspapers have for centuries played a central role in giving effect to freedom of expression in Western democracies. The limits, and privileges, afforded to them have changed over time. The courts are still struggling to redefine these limits, especially in a digital era when even traditional newspapers are increasingly moving their content online.

The inception of the printing press in the 15th-16th c. revolutionized Western Europe, widely disseminating ideas like never before. Many of these ideas were considered dangerous to the state, either treasonous or heretical (or both, given the close relationship between church and state at that time), and therefore there was a strong state interest in regulating the content of these publications.

The first known English printed newsletter was published in 1549, with the first English newspaper being printed on December 2nd, 1620. The reason these English publications were published outside of England is that the Star Chamber forbade the publication of news in 1586, and banned them again between 1632 and 1638. Even with domestic publications, it was only in 1694 that pre-publication censorship in England lapsed.

Regulation of newspapers, from their very inception, was one of the main operational concerns for owners. Tom O’Malley and Clive Soley state in Regulating the Press,

As the press grew in the early decades of the [19th] century, the libel laws came to be seen, especially by proprietors, as a major obstacle to the activities of the industry. The financial consequences to a paper stemming from the loss of a libel action could be severe. The employers’ organizations began to act on this and from the 1830s the state entered into protracted negotiations with the industry of the laws of libel.

One of these major compromises was the Newspaper Libel and Registration Act 1881. The Act and its subsequent amendments introduced a number of defences of qualified privilege for newspapers, as long as the coverage for specific topics was “fair and accurate,” but also required certain participation of mandatory registration. Part of these registration requirements, which had previously existed prior to 1869, were to include the name and address of the publisher on the inside of the book, for the purposes of serving them with legal documents for any action against them. This was especially important in the era of unregistered independent newspapers that would pop up, potentially publish something libelous, and then disappear almost anonymously.

The sufficiency of such notice has been litigated since the inception of this Act. Vice Chancellor Wickens put to rest any original and purposive intent of these provisions in the early case of Dixon v. Ecoch in 1881, where he stated,

The supposition that if the Plaintiff knows the name of one proprietor he can make him tell the names of all the others, but that, not knowing one name, he cannot get the information from the printer and publisher, who is the agent of the proprietors, and is put forth to stand between them and the public, is one that does not commend itself to one’s common sense, and is not to be accepted without absolute necessity…

I merely rule that by force of this enactment a person complaining of a libel in a newspaper may file a bill against the printer and publisher to ascertain the names of the proprietors for the purpose of bringing his action against the proprietors alone. And I do so because any other conclusion seems to me inconsistent with the spirit and intention, as well as with the words, of the statute.

As was common at the time, the Legislative Assembly of Ontario enacted similar provisions in Canada, adopting the qualified privilege in The Newspaper Libel Act, 1882, and introducing special notice provisions for newspapers in the 1887 amendments. Further amendments, made in 1894, provided a brief 3-month limitations period for providing notice to a newspaper in a libel action. The previous registration requirements provided a plaintiff the information for where such notices should be made, and also provided the opportunity for newspapers to make corrections or retractions in order to mitigate their damages. The nature of newspaper circulation even in the 19th c. meant that past newspapers were easily discarded, and the damage to a person’s reputation would be quite significant without a timely intervention by the publisher, through the same communication channels that the defamatory statement had been made.

Similar notice provisions and limitations for newspapers are still in place in Ontario in the current Libel and Slander Act, and also contains a definition of “newspaper” as follows,

“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year. (“journal”)

This definition is remarkably similar as the original one introduced in Ontario in 1882. Yet there are notable differences in the Libel and Slander Act as it is constructed today, namely the inclusion of “broadcasting” as a form of media that is also subject to special rules.

As broadcasts were obviously not invented at the time of the Act’s original construction, the legislature introduced these provisions in 1958, to reflect the changing technological realities of the time. The courts did not attempt to interpret “newspapers” to include a new medium of “broadcasts,” but instead left it to the legislature to amend the Act. These definitions for both newspaper and broadcasting were last amended in 1980, well before the advent of a new technology that would require further interpretation.

The first decision to attempt this interpretation in light of the Internet was Weiss v. Sawyer, decided in 2002, when the courts were only beginning to understand the impacts of online defamation. Justice Armstrong commented in obiter in this case,

[24] The Act defines a newspaper in part as a “paper” containing certain categories of information for distribution to the public. I think the word “paper” is broad enough to encompass a newspaper which is published on the internet.

The next Court of Appeal decision to rule on this was Bahlieda v. Santa in 2003, where the court wisely indicated at para 6 that the determination of whether “broadcast” could apply to an online publication was best reserved for trial on a full evidentiary record, especially as the expert opinions on the matter were conflicted,

[6] …Summary judgment applications are not a substitute for trial and thus will seldom prove suitable for resolving conflicts in expert testimony particularly those involving difficult, complex policy issues with broad social ramifications.

Finally, the Court of Appeal revisited the issue more recently in 2013, in Shtaif v. Toronto Life Publishing Co. Ltd., where Justice Laskin stated,

[24] In this case, I think the sensible course is that adopted in Bahlieda: to leave to trial the question whether the internet version of the article is a newspaper published in Ontario or a broadcast from a station in Ontario. I am not satisfied that the evidentiary record before us is sufficient to decide these questions, which have broad implications for the law of defamation.

[25] Leaving these questions for trial also makes practical sense. On my proposed disposition of these appeals, the issue whether the claim for libel in the internet version of the article is subject to the notice and limitation provisions of the Act is relevant only to the issue of discoverability, an issue I would also leave to be determined at trial.

[26] Therefore, I would hold that the issue whether the claim for libel in the internet version of the article is subject to ss. 5(1) and 6 of the Act is a genuine issue requiring a trial.

More recently, the Court of Appeal attempted to provide interpretation to the Act in John v. Ballingall, where I was co-counsel for the Appellant. The appeal arose from a Rule 21.01(1)(a) motion for online defamation, where the motions judge disposed of the action stating,

[16] In my view, the weight of jurisprudence favours the view that an internet posting or broadcast is covered by the Libel and Slander Act, unless specific facts dictate otherwise.

The Court of Appeal rejected our submissions, adopting the respondent’s argument that the Act and its notice provisions did apply to an online article,

[23] I agree with the analysis in Weiss that the word “paper” in the definition of “newspaper” is not restricted to physical paper. To hold otherwise would be to ignore principles of statutory interpretation, which are flexible enough to achieve the intent of the legislature in the context of evolving realities. As the Supreme Court of Canada held in R v. 974649 Ontario Inc., 2001 SCC 81(CanLII), [2001] 3 S.C.R. 575, at para. 38:

The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute’s enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances. Instead, we recognize that the law speaks continually once adopted. Preserving the original intention of Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments, sensitive to evolving social and material realities. [Citations omitted.]

[24] The courts have interpreted legislation to apply to advances in technology that did not exist when the provision was enacted. For example, courts have found the Telegraph Act[1] applies to telephones, and a fibre optic system is a “cable” within the meaning of the Income Tax Act[2], despite the fact that neither of these technologies existed at the time the relevant provisions were enacted: see Attorney General v. Edison Telephone Co. of London Ltd. (1880), 6 QBD 244; and British Columbia Telephone Co. v Canada (1992), 139 N.R. 211 (F.C.A.).

[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.

[30] I also do not accept the appellant’s submission that Shtaif called into question the ratio of Weiss. On the contrary, Laskin J.A. affirmed the need for “judicial interpretation” to deal with new technology. At para. 20, he referred to the LSA and commented:

The Act was drafted to address alleged defamation in traditional print media and in radio and television broadcasting. It did not contemplate this era of emerging technology, especially the widespread use of the internet. The application of the Act to internet publications will have to come about by legislative amendment or through judicial interpretation of statutory language drafted in a far earlier era. [Emphasis added by the court.]

With all due respect to the court, this interpretation creates several unanswered questions. In addition to the foregoing decisions, there is the Legislation Act, 2006, which had not been properly considered by any of the previous courts. This Act also provides a definition for newspaper as follows,

87 In every Act and regulation,

“newspaper”, in a provision requiring publication, means a document that,

(a) is printed in sheet form, published at regular intervals of a week or less and circulated to the general public, and

(b) consists primarily of news of current events of general interest; (“journal”)

[emphasis added]

The additional requirement that a newspaper be in printed sheet form would exclude Internet forms of a newspaper. The Legislation Act “applies to every Act and regulation… unless, (a) a contrary intention appears; or (b) its application would give to a term or provision a meaning that is inconsistent with the context” (ss. 46-47).

A contrary intention in this context appears impossible, as the definition of “newspaper” predates the Internet by a century, and the purpose for these requirements cannot logically apply online. Whereas yesterday’s newspaper may be hard to find, outside the wastebin, an online article continues to be read and disseminated until it is removed from the Internet, and even then, it’s likely that it may be copied and mirrored to many other sites.

The explanation, retraction and apology remedies provided under ss. 3(7), 5(2), 9(1) and 20 of the Libel and Slander Act cannot benefit a plaintiff in the same manner online as it can in print, as the dissemination channels are different. It’s uncertain under this decision as to whether a defendant has complied with the provision for online defamation by publishing an explanation, retraction or apology in print alone.

It’s also unclear to whom the Libel and Slander Act would apply, because the definition of newspapers online is so amorphous. The original requirements of publishing a proprietor and publisher name and address can still be found in s. 8 of the Act, but it must be “stated either at the head of the editorials or on the front page of the newspaper.” We are unclear what the online equivalent of this would be.

Because newspapers no longer need to be registered in Ontario, there is no principled reason why countless websites or even blogs could not apply. The earliest authors of blogs (from web-logs) referred to themselves as “diarists, journalists, or journalers,” with the type of content and frequency that would fall under the definition of the Libel and Slander ActMore importantly, there are online-only newspapers like the HuffingtonPost which do not maintain a print version of their paper at all.

Is an online photo or even a video included under the definition of “newspaper” in the Libel and Slander Act? Section 1(2) of the Act would extend the definition so that it would, simply because the protection is being provided to the entity, a newspaper, and not the means of communication, which historically was exclusively in print only. Doing so would effectively eliminate the distinctions between both “newspapers” and “broadcast” under the Act, which would never have been the intent with the amendments adding the latter.

The Court of Appeal attempted at para 20 to limit this decision so that it does “not involve the Internet or online postings generally,” but the interpretation of an online version of a newspaper as a “newspaper” under the Act would have the same effect.

Including blogs and online-only newspapers gives rise to further jurisdictional concerns. The Libel and Slander Act only apply “to newspapers printed and published in Ontario and to broadcasts from a station in Ontario.” Websites that do fall under the Act will need to be interpreted further as to printing and publishing geographically, beyond the plain meaning physical definitions.

Although judicial interpretation of statutory language may have been required to resolve this issue, in my humble submission the Court of Appeal has created more uncertainties than clarity with these changes. The Libel and Slander Act, which was last amended by the legislature in 2015, does not include any clear intent to include the Internet, and a judicial reading this meaning into it creates greater inconsistency within the statutory provisions.

I explained some of these problems recently in Canadian Lawyer,

This interpretation of the Libel and Slander Act means that if there is something defamatory online by any entity that could be defined as a newspaper — and we don’t know what that definition will mean after this decision — that there will be a very, very strict notice requirement and a stricter limitation period and not adhering to those requirements under the Act will result in them losing their right of action.

Since this case was advanced on a pro bono basis, it’s still undetermined whether leave for further appeal will be sought. If not, it rests on subsequent cases to clarify the court’s ruling here further, especially if there are no subsequent amendments to the Libel and Slander Act explicitly including the Internet into its provisions.

Comments

  1. I suppose it should be noted that the Court of Appeal decision discussed in this article decided the contrary to the title of the article, i.e. that an online newspaper is in law a newspaper for the purposes of the relevant statute.

    The Law Commission of Ontario is reviewing the law of defamation generally, with particular attention to how it applies to Internet publications. Questions such as those raised in this article are very much the focus of its attention.

    The Law Commission has recently published several study papers on the topic, which can be accessed here.

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