Ephemeral nature of electronic media can both expand, reduce exposure to liability

The ephemeral nature of electronic media is a double-edged sword, in that it can both expand and limit exposure to media liability, a prominent media lawyer told a PLUS Canadian Chapter educational seminar in Toronto.
In terms of expanding liability exposure, Peter Jacobsen, a media lawyer and partner at Bersenas Jacobsen Chouest Thomson Blackburn LLP, suggested electronic media carry the potential to wreak havoc with provincial statute of limitation laws, which were developed with the print media in mind.
Statute of limitation laws restrict the amount of time a plaintiff has to sue for defamation, usually limiting the window for launching a lawsuit against the publisher of defamatory material to a specific period. The period often runs starting from the time a person has first become aware of the publication of the defamatory remarks. (In B.C., for example, the limit is two years.)
But Jacobsen observed that, where Web publication is concerned, Canada does not have the same “single publication” cyber-laws as in the United States.
Under U.S. laws, for example, if defamatory material is posted on a Web site, the first appearance of the defamatory material is considered a “single publication” of that material. “It’s not a re-publication for it to continue to be on the Internet every day,” Jacobsen said.
In Canada, on the other hand, each day the defamatory material is published is considered to be a new date of publication. Thus the date of publication for the purpose of establishing the beginning of the statute of limitations — i.e. the date on which the plaintiff says he or she first became aware of the publication — is essentially a moving target.
“The [limitation] period where it’s on the Web keeps running, keeps starting every day it’s re-published,” said Jacobsen.
Plaintiffs can use this to their advantage to extend fixed limitation periods, Jacobsen said. It might also affect an insurer’s exposure to large damage awards, since the damage to a plaintiff presumably gets worse for each and every day the defamatory material is re-published on the Web.
On the flip side, Jacobsen said, the ephemeral nature of electronic postings makes it easier and quicker to take the defamatory material down, out of the public eye, and thereby potentially reduce the damage it might have caused.
For this reason, insurers may want to ask their underwriters to consider policy conditions that require policyholders to act quickly and according to an established protocol in the event of a potential exposure to cyber-liability.