Defamation Legislation in the Internet Age

By: Zoe Kalakos

Defamation occurs when statements are made that injure the reputation of a third party, either an individual or a company. While it is typical to see newspapers or journalists be accused of defamation, with the rise of social media it is much more common for the average person to open themselves up to a defamation lawsuit. The law in Ontario is not catching up fast enough to rapid developments in communications, creating different tiers of defamation suits and inconsistent notice requirements. 

There are two different types of defamation in Ontario: slander and libel. Slander is when the injurious statements are made verbally, whereas libel relates to defamatory words that are in a newspaper or broadcast. The Libel and Slander Act (Ontario) (the “Act”) lays out the procedural requirements for a defamation action but does not apply to all instances of defamation.

The source of complaints has changed. The earlier complaints were from newspapers, or verbal, whereas now a majority of the complaints are from the internet. Common sources in new claims come from websites such as Twitter, Facebook, and YouTube, and review sites such as Yelp or TripAdvisor. The rise of the internet is central to this shift.

An example of a “prototypical” slander case is Hill v Church of Scientology, wherein the Church of Scientology and their Solicitor were sued for defamation after they read out a notice of motion at a press conference on the steps of Osgoode Hall and commented upon the allegations contained therein. Traditional libel suits were frequently based on newspapers, such as in Hermiston v Robert Axford Holdings Inc et al. 

In the most recent years, libel and slander cases have taken on a different feel. More of the population are able to express their opinions, and it is relatively easier to gain a following or an audience for one’s word, written or not.  Defamation cases, once mostly comprising of businesses and politicians, now see plaintiffs and defendants of all types. The Act has not quite caught up to this shift in the courtroom, leaving the heavy work to the Judges.

In the case of Levant v Day, the Court ruled on an Anti-SLAPP motion that the notice portion of the Act does not apply to Twitter. Section 5(1) makes it a requirement that “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”. The court noted that there was not enough information presented to them to make a determination that the Act and definition of broadcast should be extended to include Twitter. As it stands, “broadcast” (and “broadcasting”) mean “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 radiotelephone, or (b) cables, wires, fibre-optic linkages or laser beams”.

In Levant, it was not fatal to the Plaintiff that they did not provide notice pursuant to the Act. However, there is some confusion surrounding the implications of this ruling. For example, what happens when a potential defendant to a libel suit shares an allegedly defamatory online newspaper article (subject to the notice period) to Twitter (not subject to a notice period)? Is the prospective plaintiff relieved of the section 5(1) notice period because of this Twitter-loophole? 

For now, there appears to be no clear answer. The Act, undoubtedly, needs to catch up with technology and social media. While the Courts have been making findings with respect to the applicability of social media within the Act, attempts to interpret now-dated language may become more and more strained. Legislature will have to step in and replace some of the more outdated verbiage with language that better reflects the reality of communication in society today. 

Endnotes

1   RSO 1990, c L12 [Libel Act].
2   [1995] 2 SCR 1130, 24 OR (3d) 865.
3   21 OR (3d) 211, [1994] OJ No 2467.
4   2017 ONSC 5956 at para 48, [2017] OJ No 5359 (QL) [Levant].
5   Libel Act, supra note 1 at s 5(1).
6   Levant, supra note 4 at para 46.
7   Libel Act, supra note 1 at s 1.
8   Supra note 4 at para 48.

Zoe Kalakos is a lawyer at Inch Hammond Professional Corporation who practices in the areas of corporate/commercial, real estate, and indigenous business law. 

She can be contacted at: 

500-1 King St W
Hamilton, ON
L8P 4X8
Tel: 905-525-4481 (ext 204)
Email: [email protected]