July 29th, 2004
In Bahlieda v. Santa, the question of whether information placed on a website and made available through the Internet is “broadcast” within the meaning of the Ontario Libel and Slander Act remains unanswered. The Ontario Court of Appeal recently overturned a motions judge’s finding that placing material on the Internet via a website, constitutes a broadcast within the meaning of the Libel and Slander Act. In the Act, "broadcasting" is defined as the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public. Unlike cases where defamatory statements are not broadcast, the Act requires a plaintiff to notify a broadcaster of the intention to sue them for defamation within six weeks of discovering the defamatory material and to sue the broadcaster within three months – or their action will be barred.
The motions judge, Pierce J. of the Superior Court, granted partial summary judgment dismissing a defamation action relating to allegedly defamatory information posted on the Internet – finding that information placed on a website and made available through the Internet constituted a “broadcast” and was thus subject to the same requirements as any other broadcast. The motions judge found that the plaintiff had neither notified the ‘broadcaster’ of the intention to sue within six weeks nor commenced the action within three months. Accordingly, the action was dismissed as statute-barred.
A unanimous Court of Appeal overturned the decision – finding that conflicting expert evidence on the issue made it unclear whether Internet information can be properly considered a ‘broadcast’ and thus subject to the strict limitations under the Act. The Court of Appeal found that judgment should not be granted and that a trial was necessary “for resolving conflicts in expert testimony, particularly those involving difficult, complex policy issues with broad social ramifications.”
The Court of Appeal also stated that it remains to be decided whether subsequent viewing of Internet material by third parties amounts to a republication of the material thereby triggering copyright protection laws.
Published July 29, 2004
 (2003), 68 O.R. (3d) 115 (C.A.).