An Online Newspaper Is Not a Newspaper

• Author: Omar Ha-Redeye
• Date: August 13, 2017

Newspapers have for centuries played a central role in giving effect to freedom of expression in Western democracies. The limits, and privileges, afforded to them have changed over time. The courts are still struggling to redefine these limits, especially in a digital era when even traditional newspapers are increasingly moving their content online.

The inception of the printing press in the 15th-16th c. revolutionized Western Europe, widely disseminating ideas like never before. Many of these ideas were considered dangerous to the state, either treasonous or heretical (or both, given the close relationship between church and state at that time), and therefore there was a strong state interest in regulating the content of these publications.

The first known English printed newsletter was published in 1549, with the first English newspaper being printed on December 2nd, 1620. The reason these English publications were published outside of England is that the Star Chamber forbade the publication of news in 1586, and banned them again between 1632 and 1638. It was only in 1694 that pre-publication censorship in England lapsed.

Regulation of newspapers, from their very inception, was one of the main operational concerns for owners. Tom O’Malley and Clive Soley state in Regulating the Press,

As the press grew in the early decades of the [19th] century, the libel laws came to be seen, especially by proprietors, as a major obstacle to the activities of the industry. The financial consequences to a paper stemming from the loss of a libel action could be severe. The employers’ organizations began to act on this and from the 1830s the state entered into protracted negotiations with the industry of the laws of libel.

One of these major compromises was the Newspaper Libel and Registration Act 1881. The Act and its subsequent amendments introduced a number of defences of qualified privilege for newspapers, as long as the coverage for specific topics was “fair and accurate,” but also required certain participation of mandatory registration. Part of these registration requirements, which had previously existed prior to 1869, were to include the name and address of the publisher on the inside of the book, for the purposes of serving them with legal documents for any action against them. This was especially important in the era of unregistered independent newspapers that would pop up, potentially publish something libelous, and then disappear almost anonymously.

The sufficiency of such notice has been litigated since the inception of this Act. Vice Chancellor Wickens put to rest any original and purposive intent of these provisions in the early case of Dixon v. Ecoch in 1881, where he stated,

The supposition that if the Plaintiff knows the name of one proprietor he can make him tell the names of all the others, but that, not knowing one name, he cannot get the information from the printer and publisher, who is the agent of the proprietors, and is put forth to stand between them and the public, is one that does not commend itself to one’s common sense, and is not to be accepted without absolute necessity…

I merely rule that by force of this enactment a person complaining of a libel in a newspaper may file a bill against the printer and publisher to ascertain the names of the proprietors for the purpose of bringing his action against the proprietors alone. And I do so because any other conclusion seems to me inconsistent with the spirit and intention, as well as with the words, of the statute.

As was common at the time, the Legislative Assembly of Ontario enacted similar provisions in Canada, adopting the qualified privilege in The Newspaper Libel Act, 1882, and introducing special notice provisions for newspapers in the 1887 amendments. Further amendments, made in 1894, provided a brief 3-month limitations period for providing notice to a newspaper in a libel action. The previous registration requirements provided a...