Personal Injury

Right to sue for internet defamation comes with time limits

By Tony Poland, AdvocateDaily.com Associate Editor

Toronto personal injury lawyer Jessica Mahabir says her firm’s victory in a defamation lawsuit is an important lesson in timeliness.

Mahabir, an associate with Derfel Injury Lawyers, defended a woman being sued by a doctor for posting critical reviews of his work. In the end, she was successful when Ontario Superior Court Justice Paul Schabas ruled the doctor failed to bring his claim in the allowed time period after he first noticed the posts.

“The decision is important because there isn’t much case law out there specifically relating to online defamation and most of these types of cases involve major publications. There’s specific legislation regarding statements published in a newspaper or a public broadcast but it’s not clear that it would apply to an internet review or someone’s personal Twitter account,” she tells AdvocateDaily.com. “You don’t see a lot of cases discussing that, at least not in Canada.”

Mahabir, along with David Derfel, founder and principal of Derfel Injury Lawyers, represented a woman who underwent a cosmetic procedure performed by a plastic surgeon in October 2015.

Court was told that on Jan. 18 and 19, 2016, the woman posted descriptions of her experience that were critical of the doctor on three different websites. The doctor discovered the posts shortly after.

“The defamatory words have remained on the websites continuously since being posted,” Schabas found, but the doctor waited until April 23, 2018, to start his action for defamation.

Mahabir says she found it curious that the doctor “never requested that posts be taken down, which seems like the logical thing to do if you believe you are being defamed.”

She also questioned the time of the defamation suit.

“He had been aware of these reviews since she was a patient of his,” she says. “This isn’t the first time that we’ve heard that doctors have started these defamation lawsuits in retaliation, perhaps as an attempt to scare off plaintiffs.

“We felt it there were a number of different avenues we could have taken with this but because the lawsuit was brought out of time we took the approach that we did.”

Mahabir and Derfel argued that the doctor commenced his action after the expiry of the two-year limitation period as set out in s. 4 of the Limitations Act, 2002.

However, according to the ruling, “the plaintiffs amended their claim to plead that the defamatory words ‘have been continuously accessed and downloaded by third parties since April 23, 2016’ and state that ‘each instance of a third party accessing or downloading the reviews is a separate and new instance of publication and, therefore, defamation.’”

Schabas found that “the multiple publication rule applies when something is ‘republished across different mediums’” and that “such republications require specific acts by the publisher, or republisher, to further disseminate, or repeat, the libel.”

The court ruled that “to give effect to the amendment in the Statement of Claim would create the potential for endless retriggering of limitation periods simply because the words remain on the internet.”

“This would allow plaintiffs to sit on their rights until it suited them to take action, rather than sue when they become aware of the wrong,” Schabas said. “This would be unfair to defendants who would be subject to lawsuits indefinitely and raises concerns about freedom of expression.

“In this case, there has not been any republication, or even repetition, by the defendant — on the internet, in print, or elsewhere.”

Mahabir says, “The judge appreciated that there has to be a clearly defined limitation period for when people can start lawsuits.

“There are a number of different issues at play here, but I think the biggest takeaway is just because something is online the mere fact of someone reading it does not constitute a separate publication.”

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