The risks of taking partial
responsibility for an employee
defamation claim
Dan Michaluk
November 2, 2013
The reasons not to get involved
•

One - takedown is not as simple as it seems and
will often require commitment through t...
The reasons not to get involved
•

Two – the duty to takedown is questionable
because takedown is enabled by a (personal)
...
The reasons not to get involved
•

Three – the outsider may be right
•

Quite an obvious conflict if the defamatory
public...
The reasons not to get involved
•

Four – unfair to the employee and engenders
prejudice through reliance
•

Interests are...
Limitation period prejudice
•

Libel and Slander Act special limitation period
•

Six weeks from point of knowledge must s...
Limitation period prejudice
•

Libel and Slander Act special limitation period
•

Applies to newspapers published on the i...
Limitation period prejudice
•

Okay, but how does it work?
•

When does publication occur?
•

•

Upload? Or download?

Doe...
Limitation period prejudice
•

Okay, but how does it work
•

When does publication occur?
•

•

Upload? Or download?

Does...
Limitation period prejudice
•

When does publication occur?
•

Occurs on download – Breeden v Black (SCC)

•

Upload does ...
Limitation period prejudice
•

Does the single publication rule apply?
•

Shtaif (OCA) is about publication from print to ...
Limitation period prejudice
•

Does the single publication rule apply?
•

Carter (BCCA) is stronger but non-binding author...
Limitation period prejudice
•

Loutchansky (CA - Eng) is stronger but nonbinding authority
•

Court denies leave to amend ...
Limitation period prejudice
•

The risk is very moderated but exists in Ontario

•

There is other prejudice
•

Loss of da...
In practice
•

There are lots of practical reasons to talk an
employee down, so you may not recommend

•

But you must adv...
The risks of taking partial
responsibility for an employee
defamation claim
Dan Michaluk
November 2, 2013
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Ee defamation prejudice

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Ee defamation prejudice

  1. 1. The risks of taking partial responsibility for an employee defamation claim Dan Michaluk November 2, 2013
  2. 2. The reasons not to get involved • One - takedown is not as simple as it seems and will often require commitment through to trial • Injunctive relief not ordinarily available - Canada Metal (Ont Div Ct) • Outsiders have nothing to lose and are looking for a fight 2
  3. 3. The reasons not to get involved • Two – the duty to takedown is questionable because takedown is enabled by a (personal) defamation action • You can have a "nexus" and safety related duties without a duty to takedown - Correctional Services (K. O'Neil) • No duty to protect reputation – Tipple (FC) 3
  4. 4. The reasons not to get involved • Three – the outsider may be right • Quite an obvious conflict if the defamatory publication relates to an employee's work • Must investigate first before taking a position 4
  5. 5. The reasons not to get involved • Four – unfair to the employee and engenders prejudice through reliance • Interests are not as aligned as they seem • Let's discuss 5
  6. 6. Limitation period prejudice • Libel and Slander Act special limitation period • Six weeks from point of knowledge must serve notice of intended action in libel • Commence action within three months • Newspapers printed and published in Ontario • Broadcasts from a station in Ontario 6
  7. 7. Limitation period prejudice • Libel and Slander Act special limitation period • Applies to newspapers published on the internet – Weiss (OCA) • Whether it applies to other internet publications as “broadcasts” is likely a matter for trial – Shtaif (OCA) 7
  8. 8. Limitation period prejudice • Okay, but how does it work? • When does publication occur? • • Upload? Or download? Does the single publication rule apply? • A plaintiff has a single cause of action that arises at the first publication of an alleged libel regardless of the number of copies of the publication distributed or sold 8
  9. 9. Limitation period prejudice • Okay, but how does it work • When does publication occur? • • Upload? Or download? Does the single publication rule apply? • A plaintiff has a single cause of action that arises at the first publication of an alleged libel regardless of the number of copies of the publication distributed or sold 9
  10. 10. Limitation period prejudice • When does publication occur? • Occurs on download – Breeden v Black (SCC) • Upload does not support an inference of downloading – Elfarnawi (Ont SCJ) • Rely on web page counters at your client’s peril! 10
  11. 11. Limitation period prejudice • Does the single publication rule apply? • Shtaif (OCA) is about publication from print to online • • • Print version discovered June 19th Internet version discovered August 20th Notice given on September 29th • Court finds publication on internet a new cause of action – i.e. no single publication rule cross-medium • Some uncertainty about repeat downloads remains 11
  12. 12. Limitation period prejudice • Does the single publication rule apply? • Carter (BCCA) is stronger but non-binding authority • Knowledge of defamatory comment on bulletin board that remained published for over two years • Court says, “If comments remain published an individual ought to have a remedy” • Action may proceed so plaintiff can prove “subsequent publication” 12
  13. 13. Limitation period prejudice • Loutchansky (CA - Eng) is stronger but nonbinding authority • Court denies leave to amend to assert a limitation period defence to "continuing publication" claim • Principled attack on English theory of republication made – public interest in internet archiving • Court says no – but "scale of publication and resulting damage likely to be modest" 13
  14. 14. Limitation period prejudice • The risk is very moderated but exists in Ontario • There is other prejudice • Loss of damages for prior causes of action subject to one year of “recapture” – which rests on the provision of timely notice (see Shtaif, see Loutchansky) • Loss of evidence of publication • Strategic prejudice 14
  15. 15. In practice • There are lots of practical reasons to talk an employee down, so you may not recommend • But you must advise of the risk right away • If the matter hits a threshold of intensity they should have a talk with the employee • Referral to independent counsel is appropriate 15
  16. 16. The risks of taking partial responsibility for an employee defamation claim Dan Michaluk November 2, 2013
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