A news article published on the internet, has the potential to reach millions within a couple of hours, and the news article stays published, sometimes for an indefinite period, where people would have access to the article perpetually. What if a defamatory article that gets published and stays within the archives of a media broadcasting website for years, or a removed article re-appears after 10 years on the website, gaining a completely new audience to the article? Or an article that was initially published only in print media is now put on the website gaining larger audience?
The question arises: Can someone bring in an action against the media broadcaster years after it was first published, because it has either since re-appeared on the website, or for that matter, always remained in the archives and was never removed?
The Single Publication Rule
In accordance with this rule, a single defamatory statement, publication or media broadcast is considered as a single publication, meaning there is one action for mass communication of a defamatory publication and it has one start date for the limitation period, starting from the date when the publication was first distributed to the public. This rule is adopted in most American Jurisdictions. Canada, however, rejects this rule in favour of the Multiple Publication Rule.
The Multiple Publication Rule
The multiple-publication or multiple-cause-of-action rule is the common law in Canada. It essentially means that each republication of the article provides for a new and separate action and the limitation period will start to run from the date when the republication occurred. This rule raises an interesting, but debatable, point of view: Every day that the defamatory statement remains on the internet gives rise to a potential defamation action. And thus, every day the limitation period gets renewed, meaning the limitation period would not begin to run until the time the statement or the article is removed.
In AARC Society v. Canadian Broadcasting Corporation, 2019, the Court of Appeal of Alberta discussed the above issues at length, while dealing with an appeal to amend the statement of claim, in a defamatory action.
The facts of the case are as under:
AARC (Alberta Adolescent Recovery Centre), a non-profit corporation that provides treatment for addicted adolescents, sued CBC (Canadian Broadcasting Corporation) for severely criticizing AARC in a 2009 broadcast. AARC alleged, inter alia:
…..[The Program] was deliberately and defamatorily focused on Sensationalism to add “spice” to attract and captivate audience interest with the well known journalistic device of showcasing abuse, sex and sexual abuse to garner viewer interest and recognition.
A nine-week trial is scheduled to commence in January 2021.
Shortly after the broadcast, CBC posted the program on its web page and it remained on this site until sometime in March 2017 when it was removed. On September 25, 2017, CBC reposted the program on its website.
After the reposting, AARC proposed amendments to the statement of claim that reflected a dramatic change in strategy, where AARC sought permission to delete the provision of its claim stating that it does not sue for the “criticism in the Powerless Production of AARC[’s] … model, methodology, practices, techniques, personnel, statements as to government oversight, success rates or attacks against its executive director” and to add allegations that the defamatory features of the program include the very ones it initially declined to pursue. The amendments further included, in addition to the Sensationalism, that the program contained several other defamatory statements, allegations, innuendos and criticism of AARC. CBC denied the request.
…existence of the Internet Broadcast on CBC’s website constitutes a distinct cause of action for each and every day the Internet Broadcast is posted on the CBC website. The implication is that the time with respect to those broadcasts begins to run from the day the words are published online.
The chamber’s judge denied significant portions of the amendment application, stating, inter alia:
……the continued existence of a statement or broadcast on a website does not amount to a daily republication of that statement for the purposes of renewing the limitation period perpetually.
The law in Canada is divided on the issue of the limitation period in such cases of re-publication and/or continued existence on the internet.
The Court of Appeal delivered different results to the case.
Wakeling J.A., allowing the appeal, confirmed that a new Defamation Action potentially arises every day that Defamatory Material remains on a Website.
Allowing the appeal, he stated:
The law is clear. Every day that defamatory material remains on an internet website a potential defamation action arises. And the limitation period starts with each new communication of allegedly defamatory material. Had the chambers judge come to the contrary conclusion he would have realized that AARC was not seeking an amendment relating to a time-barred injury. AARC seeks solely to amend its pleading to complain about the defamation features embedded in CBC’s website as it appeared in late 2017: this claim is clearly not time-barred.
Pentelechuk, J.A. concurred, allowing the appeal, BUT stated:
I decline to weigh in on whether a defamation action arises every day the defamatory material remains on an internet website;
I allow the appeal on other grounds. I also agree with Wakeling JA that the chambers judge erred in concluding that the appellant’s change in litigation strategy significantly prejudiced the respondents………………….In this appeal, aside from the possible limitation defence, the respondents failed to identify any specific prejudice they would suffer as a result of the amendments, let alone prejudice that could not be ameliorated through an award of costs.
McDonald, J.A., dissenting, dismissed the appeal. He stressed on the part that the reproduction of the material was “unaltered” and was placed back onto the same section of the CBC website for a period of time. The issue was the re-publication of the material and whether that could give rise to a separate cause of action, thus renewing the limitation period. “Material Difference” in the publication from the original one and its reach to “New Audience” were the primary factors discussed.
…..the continued presence of a defamatory statement on one website should not be confused with the republication of the statement across different mediums or different web pages.
……..the single publication rule does not apply if the manner of the later publication is “materially different” from the first.
It would appear that the CBC simply reposted the video to its former place in the archives section. This reposting, in my view, does not constitute a republication of the story because the manner of its publication was not materially different from the original publication on the website and the reposting was not intended to reach a new audience. Accordingly, the limitation period had expired years earlier.
Undoubtedly, the law is divided on the issue whether the limitation period stops running if the defamatory material is on the internet and will not begin to run until the time it is removed. It would be difficult to determine whether the material is still on the internet or not when the material could be easily copy/pasted and posted somewhere else. Thus, taking a position like this would defeat the meaning and purpose of the limitation period to start with, especially when the original publisher may have no control, whatsoever, on reproduction at other sources (though one may, or may not able to bring in an action against original publisher once the publication is removed from the website where it was originally posted).
It appears the appellate courts are now siding more towards the “re-publication” test of the material which constitutes “material difference” of the publication from the original one and whether the publication would reach “newer and broader” audience once re-published.