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BLG Update on Media Law
Column for 15 September 2005

Limitation Periods for Online Publishers – New Developments
A Commentary on Carter v. BC Federation of Foster Parents Association released on August 3, 2005 by the British Columbia Court of Appeal

In our June 23, 2005 article, Limiting Libel Risks for Online Magazine Publishers, we reviewed how provincial limitation periods in defamation statutes across Canada protect online publishers by restricting the manner and time within which defamation claims against publishers can be asserted. We showed how recent cases out of Ontario recognized online publications as being “broadcasters” or “newspapers” within the meaning of various provincial defamation statutes, thereby entitling them to the protection afforded by limitation periods in those statutes.

Generally, defamation statutes require a person asserting a defamation claim to give notice of the claim to a publisher within six weeks to three months of the article coming to the Plaintiff’s attention. A lawsuit, if any, must be started within three months of the date of the article. These periods vary significantly from province to province. However, failure to comply with them, both in terms of how notice is given to a publisher and the time within which it must be delivered, absolutely bars claims.

Although recent decisions have applied limitation periods in favour of online publishers, a case last month out of the British Columbia Court of Appeal dealt with an issue that may erode some of the protection recent courts have given to online publishers. In Carter v. B.C. Federation of Foster Parents (released on August 3, 2005), the Court dealt with the issue of not whether that province’s limitation period was applicable to an online publisher, but rather when and how that limitation period began to run. In other words, the Court assessed the manner in which it should calculate how the time expressed as a limitation period expires.

Since an online publication appears on the Internet continuously, the Court had to decide whether the limitation period began to run from the date the article was first posted to a website, or whether it should extend the period each time someone opened and actually read the online article.

Briefly, the facts in the Carter case were: The Plaintiff, Liza Carter, was initially a Regional Representative, subsequently a board member and ultimately President of the B.C. Federation of Foster Parents (the Federation) from 2000 to 2002. The defamatory posting about her appeared on an Internet forum in February 2000. The Forum was set up by the Federation (the Federation Forum). Carter immediately became aware of the posting and asked the Federation Forum to shut down the site. The Federation instructed its Internet service provider to shut down the site and to delete the materials, but the Board did not follow up to see if its instructions were followed. The Federation Forum was reconstituted as a read-only site, but the offending comments were not removed. Two years later, in the late spring of 2002, Carter discovered that the defamatory posting had not been deleted. She commenced a lawsuit against the Federation at that time.

The Libel and Slander Act of British Columbia does not have a specific limitation period which applies to defamation cases. The applicable limitation period is set out in the British Columbia’s Limitation Act, R.S.B.C., 1979, C. 236 in subsection 3(1) which requires a defamation lawsuit to be started within two years from the date on which the Plaintiff’s “right to do so” arose. Since the original posting to the Federation Forum was in February 2000, the Defendants argued that the action was statute-barred because the Plaintiff did not start her lawsuit until the spring of 2002, more than two years later. The evidence before the Court was sparse as to whether or not between February 2000 and the spring of 2002 anyone actually opened the defamatory posting on the Federation website.

The Court had to decide if the action against the Federation Forum was statute-barred. To reach a decision, it had to determine when the two-year limitation period began to run. Was it the date of the original posting in February 2000? Or did the fact that the article remained accessible to the public for the next two years on the Federation Forum extend the limitation period so that the Plaintiff’s action, commenced as it was in the spring of 2000, would not be barred?

To answer the question, the British Columbia Court of Appeal had to reconcile two conflicting legal positions. The first was based on a longstanding rule in defamation cases – that every time an article or statement is published or republished it creates an individual, discrete, actionable, defamatory statement upon which a Plaintiff can sue. That rule originates from the United Kingdom and has been described by the courts as:

It is elementary that every sale or delivery of a written or printed copy of a libel is a fresh publication, for which an action lies.
See Lambert v. Roberts Drug Stores Ltd. (1933), 41 Man. R. 322 (C.A.) and Basse v. Toronto Star Newspapers Ltd. (1983), 44 O.R. (2d) 164, (H.C.) both referring to Duke of Brunswick v. Harmer, [1849] 14 Q.CB. at 185.

The second principle is what American Courts call the “single publication rule.” It states that the publication of a book, periodical or newspaper containing defamatory material gives rise to only one cause of action for defamation. Under that rule, a limitation period begins to run at the time of the original publication. Therefore, subsequent republications do not extend the limitation period. The importance of reconciling these conflicting principles for online publishers can’t be overstated.

The Court of Appeal turned for assistance to a recent case of the English Court of Appeal in Loutchansky v. Times Newspapers Ltd., [2002] Q.B. 783, where the same question was raised. There, a newspaper, which archived its articles online, was sued long after the applicable limitation period expired. The Plaintiff alleged that the limitation period had not expired because each and every time the publication was opened after its original posting, a fresh basis for a lawsuit arose. The Defendants claimed that the single publication rule should apply to the Internet because the article remained accessible and was opened and read after the limitation period expired. The Defendants argued that if the single publication rule did not apply, the limitation period could be indefinitely postponed. This, the Defence claimed, would create a mischief which the legislature had not intended.

However, the English Court of Appeal in Loutchansky rejected the American single publication rule and reaffirmed the traditional principle – that each and every time someone went to the website and opened the article, a fresh basis for a lawsuit arose. Therefore, the Plaintiff’s action was not statute barred.

The British Columbia Court of Appeal also referred to another recent Commonwealth decision: Dow Jones & Company v. Gutnick, [2002] H.C.A. 56, a case of the Australian High Court. The Australian Court in that case also declined to apply the American single publication rule to an Internet website. It preferred the traditional approach expressed in Loutchansky.

The British Columbia Court of Appeal concluded that the Commonwealth position expressed in the Loutchansky and Dow Jones cases more clearly reflected the state of Canadian law. It therefore rejected the Defendant’s request to apply the single publication rule. However, since the evidence about how many times that article had actually been opened and read after February 2000 was sketchy at best, the Court of Appeal referred the matter back to the trial judge to determine that issue more precisely. In short, the trial judge would have to determine if the article was re-opened so as to extend the time from which the limitation period began to run.

What flows from this case is important for online publishers because it means that archived material can pose an indefinite risk of litigation.

Online publishers therefore need to understand the following principles that arise from the Carter case:

1. Provincial limitation periods require claimants to serve Notices of Libel within three to six weeks of the article coming to their attention and/or to commence lawsuits either within three months or two years of the same date. These periods vary from province to province;

2. Limitation periods start to run on the date the Plaintiff first becomes aware of the article;

3. When the material is archived, a risk arises that a limitation period may be indefinitely postponed. The courts have not yet decided whether archived material is, by virtue of the Internet, continuously republished simply because of its constant availability, or whether a limitation period will only be extended if there is proof an article is actually opened and read by a website user thereby causing the limitation period clock to restart. It seems, however, from the English Loutchansky decision and the Carter case that the current view requires the Plaintiff prove that an article was actually opened and read on a website so as to extend that period;

4. Following the reasoning in the Loutchansky and Carter cases, if online publishers can prove if and when articles were actually opened, then they will be able to show whether or not a limitation period has expired or can be extended. This point underscores the importance of being able to prove if, when and how many times an article has been opened on a website;

5. If a Plaintiff sues based on an article outside the original limitation period, the Plaintiff will likely be restricted in the assessment of his or her damages to those damages caused only by the article being read after the limitation period expired. In other words, if an article was posted in February 2000 and read a hundred times in that month, but the limitation period expired in June, 2000 with no lawsuit having been commenced, the subsequent opening of the article, say three years after its original posting, would not revive claims for the damage caused in February 2000. That original damage should still be statute-barred. Although this point is not yet settled by any court, it flows from the applicable principles.


The Carter case has raised important issues for online publishers. It has underscored how limitation periods can be inadvertently extended for lengthy periods of time by online archives. It also demonstrates the importance of being able to track website traffic to accurately determine when limitation periods begin to run.

David Sherriff-Scott practises litigation in the Ottawa office of Borden Ladner Gervais LLP. He is currently the Chair of BLG’s National Media and Defamation Law Practice Group. He publishes and speaks frequently in the area of defamation and civil litigation and regularly acts for national and provincial newspapers, television and radio broadcasters and other publishers. He can be contacted at