The Internet Tick Tock On Limitation Periods – Where Are You Canada?

Are you all in the clear for that questionable publication that you still host online, notwithstanding the legal threat of action received years ago? Depends where you are.

There are competing approaches regarding when the limitation period begins to run for a defamatory publication posted online, culminating in two different rules: the "single publication rule" and the "multiple causes of action rule".

The single publication rule has been adopted by a number of American states. The rule states that a publication containing defamatory material gives rise to one cause of action for libel, which arises at the time of the first publication. The limitation period therefore begins running on the date that the defamed person first sees the publication. The continued presence of the publication online - and therefore the continued access to the publication by third parties - is irrelevant. The rationale behind this line of thought is that it would be unjust for a single publication to result in more than one lawsuit.

The English and Australian Courts, and our more western appellate Courts, have expressly rejected the single publication rule, relying instead on the multiple causes of action rule. Under the multiple causes of action rule, every publication of defamatory material creates a fresh cause of action. In effect, this means that a new defamation action arises each time a third party views the publication, and thus the limitation period for each action begins at the time of such viewing. The rationale behind the multiple causes of action rule is that as long as a defamatory publication exists on the internet, it has potential to damage the defamed person's reputation, and therefore a remedy should follow.

This issue was first considered by a Canadian court in a case in which our firm acted. In Carter v. BC Federation of Foster Parents Assn., 2005 BCCA 398, the British Columbia Court of Appeal identified the two schools of thought and noted "the question of whether the Commonwealth or American approach is preferable has a considerable element of policy inherent in it" (para. 20), referring to the interest of having access to a remedy when one's reputation is harmed. Ultimately, the Court of Appeal followed the Commonwealth approach and accepted the multiple causes of action rule, though identified that a plaintiff may have difficulty proving the fact of subsequent publication following their first time viewing the material.

The Court of...