Menear v. Miguna (1996), 30 O.R. (3d) 602 (C. Ont.(Div. gén.))

  • Document:
  • Date: 2018

Menear v. Miguna et al. *

[Indexed as: Menear v. Miguna]

30 O.R. (3d) 602

[1996] O.J. No. 3443

Court File No. 95-CQ-60396

Ontario Court (General Division),

B. Wright J.,

October 7, 1996

 

 

* Note:  An appeal from the following judgment of B. Wright J. to the Ontario Court of Appeal (Brooke, Finlayson and Laskin JJ.A.) was allowed on June 3, 1997.          This information was noted at 33 O.R. (3d) 223 in this database.

Torts — Libel and slander — Defences — Publication — Innocent dissemination — Printer contracted to print book alleged to contain libellous material — Printer not reading manuscript or providing any editorial services — Only involvement of printer to print and bind copies of the book and to deliver them to the author — Publication not established — Printer also entitled to defence of innocent dissemination — Action for defamation dismissed as against printer.

 

The plaintiff alleged that he was defamed by statements in a book authored by the defendant M. The book was printed and bound by the defendant U of T Press, which did not read the manuscript of the book, had no editing function, and was not aware of the alleged libellous statements contained in the book. The defendant was unaware of the libellous material because modern printing technology does not require printers to read the material or to check its content before printing.

 

The plaintiff sued the defendants for defamation as joint tortfeasors. The defendant moved for a summary judgment dismissing the action against it on the grounds that there was no evidence of publication and that it was entitled to the defence of innocent dissemination.

 

Held, the motion for summary judgment dismissing the action should be granted.

 

Publication is an essential element in an action for libel. There is no publication by a printer of a book allegedly containing libellous material where the only involvement of the printer is to print and bind copies of the book and deliver them to the author. In the immediate case, there was no publication, and the action against the defendant U of T Press should be dismissed. Further, this defendant was entitled to the defence of innocent dissemination. The defence of innocent dissemination is available if it can be shown that: (a) the work was disseminated in the ordinary course of the defendant’s business; (b) the defendant was innocent of any knowledge of the libel contained in the work; (c) there was nothing in the work or in the circumstances which ought to have led the defendant to suppose that the book contained a libel; and (d) the defendant delivered the copies of the book to its author and played no part in the circulation of the work. U of T Press, as the printer and binder of the book, and nothing more, met the requirements of the defence of innocent dissemination. It was appropriate for the court to acknowledge the effect of changing technology on the responsibilities of a contract printer; it would be unreasonable to hold a printer liable on the facts of this case.

 

Cases referred to

 

Eglantine Inn Ltd. v. Smith & Smith (1948), N.I. 29 (K.B.); Emmens v. Pottle (1885), 16 Q.B.D. 354, 55 L.J.Q.B. 51 (C.A.); Maynard v. Port Publications Inc., 297 N.W.2d 500 (Wis. S.C., 1980); Misut v. Mooney, 475 N.Y.S.2d 233 (N.Y.S.C., 1984); Newton v. Vancouver (City) (1932), 46 B.C.R. 67 (S.C.); Vizetelly v. Mudie’s Select Library Ltd., [1900] 2 Q.B. 170, 69 L.J.Q.B. 645, 16 T.L.R. 352 (C.A.)

Rules and regulations referred to

 

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(4) Authorities referred to Odgers on Libel and Slander, 6th ed., pp. 139-40

 

MOTION for summary judgment.

 

Michael Smith, for moving party (defendant). Stephen Gillies, for responding party (plaintiff).

 

B. WRIGHT J.: — Facts

The defendant Joshua Miguna is the author of the book, “Disgraceful Osgoode and Other Essays”. Miguna, as sole proprietor of Afrikan Voices, published the book. Afrikan Voices contracted with the defendant University of Toronto Press Incorporated to print and bind the book. Copies of the book were printed and bound by U. of T. Press and were delivered to Miguna.

The plaintiff Menear commenced this action claiming that certain statements in the book are libellous and that he has been defamed by the defendants.

U. of T. Press did not read the manuscript for the book, had no editing function, and was not aware of the alleged libellous statements. U. of T. Press’s only involvement with the book was to print and bind the copies of the book and deliver them to the author, Miguna.

 

Issue

This is a motion for summary judgment brought by U. of T. Press. The issue is: Did U. of T. Press publish the alleged libellous statements, and if so, does the defence of innocent dissemination apply? Since there is no dispute on the facts and since, under rule 20.04(4) of the Rules of Civil Procedure, I am satisfied that the only genuine issue is a question of law, I propose to determine the question and grant judgment accordingly.

 

Publication

 

Proof of publication is an essential element in an action for libel. Counsel for the plaintiff contends that U. of T. Press is liable for defamation as a joint tortfeasor because one indicium of joint publication is the delivery of the printed material by the printer to the author. In support of his position he cites Eglantine Inn Ltd. v. Smith & Smith (1948), N.I. 29 (K.B.).

In Eglantine, the plaintiffs, proprietors of an inn, were involved in a trade dispute with a trade union. During the course of the dispute, an official of the trade union prepared a handbill with defamatory remarks concerning the plaintiff. The handbill was printed by the defendants in the ordinary course of business and they delivered the printed copies of the handbill to the author. The court found the defendants jointly liable.

However, examination of the decision reveals that Andrew L.C.J. did not find the defendants liable simply because they delivered the material to the author. The judge found that there was no evidence that the defendants communicated the defamatory words to any of their employees and provided further (p. 33):

. . . I have no hesitation in holding that the defendants did not publish the libel merely by handing the printed handbills in a parcel to Keheely, who, as their author, was already more familiar with their contents than they either were or could reasonably have been expected to be. Were the law otherwise a clerk or typist to whom a defamatory statement was handed by his or her employer to be copied would be liable to damages in an action of libel when he handed it back to the employer, on the ground that he or she had published the words complained of “to some person other than the plaintiff.” No case has been cited to me, nor am I aware of any, in which such an unjust and, as it appears to me, absurd conclusion was ever arrived at.

Andrew L.C.J. found that the printers were jointly liable because they had the benefit of the trade union’s privilege. He concludes (p. 35):

On the facts of the present case, however, I rely upon the handing over of the handbills by the defendants to their author, Mr. Keheely, not, as I have already mentioned, as a publication to him, but rather as important evidence of a joint production and publication. I obtain further assistance in support of the view of joint or co-operative action in the fact that the defendants’ principal line of defence, apart from non-publication, is privilege , a privilege, to which I shall refer more particularly later, not of their own, for as printers they had no interest or duty to communicate the contents of the handbill to potential customers of the plaintiffs or to anyone else, but a privilege which, it was submitted on their behalf, was the privilege of the Trade Union. With such Union they further identified themselves in the concluding words of the plea , “That the printing of the said words in the form of a circular was a reasonable and necessary step in the preparation of the said communication to be made by the said Trade Union to the said persons concerned.” In thus attracting to themselves the benefit of the Union’s privilege, the defendants appear to me to recognise fully the nature of their joint and concerted action in the production and publication of the handbills.

This case does not support the plaintiff’s contention that the printing of copies of the book and delivering them to the author makes the printer liable as a joint tortfeasor.

I am of the opinion that U. of T. Press did not publish the book, and, therefore, cannot be held liable for the alleged libellous words. However, I also propose to consider whether the defence of innocent dissemination applies to U. of T. Press to protect it from liability.

Innocent Dissemination

The defence of innocent dissemination was explained in Vizetelly v. Mudie’s Select Library Ltd., [1900] 2 Q.B. 170 at p. 180, 69 L.J.Q.B. 645 (C.A.), per Romer L.J. In essence, someone can escape liability if the individual can show that the work was disseminated in the ordinary course of business and:

. . . (1) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3) that, when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel, then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held not to have published it.

The thrust of the applicant’s argument is that previous cases, which held printers liable for the contents of the material they printed, were based on the fact that in earlier times printers necessarily had contact with the subject material. U. of T. Press argues that, today, modern printing methods do not require printers to read the material or to check its content in any way prior to printing. It suggests that the court should acknowledge this changing technology and its limiting effect on the responsibilities and duties of a contract printer. In support of its position, counsel cites two American decisions: Maynard v. Port Publications Inc., 297 N.W.2d 500 (Wis. S.C., 1980) (“Maynard”); and Misut v. Mooney, 475 N.Y.S.2d 233 (N.Y.S.C., 1984) (“Misut”).

In Maynard, the plaintiff brought an action for libel and slander against the defendant, Port Publications Inc. (“Port”), both as the publisher and the printer of nude pictures and libellous articles. The defendant, in its capacity as the contract printer, subsequently brought a motion for summary judgment.

The Supreme Court found that Port’s operations were divided into two distinct functions. As a publisher it wrote, edited, printed and published certain publications. As a contract printer, Port received the organized material, and for a fee, reproduced it on its photo-offset printing machinery. The court indicated that in order for the defendant printer to be liable, the defendant must have known or had reason to know of the libel. The affidavits in the case showed that Port did not have actual knowledge of the alleged defamation. The plaintiff had failed to offer any proof that Port had actual knowledge that the content of the newspaper was false. Had such material been presented, the court stated that summary judgment would have been appropriate. In distinguishing the case before it from previous cases where printers were found liable because they were held to have had knowledge of the defamatory words, the court stated the following at p. 507:

It should be noted that in the past, before the development of the offset printing process which Port uses, a printer when setting print had contact with the content of what it printed. Port prints from photographic negatives which have already been set in type and laid out on a page. To perform its operations, Port does not need to read the material or check its content in any way before it is printed. Contact with the content of the newspaper it prints is negligible. It is appropriate that this court acknowledge this changing technology and its effect on the responsibilities and duties of a contract printer in its decision today.

The proposition that the printing process has changed to the extent that, today, the printer does not have any contact with libellous words was adopted in Misut, supra.

In Misut, the plaintiff brought an action in libel arising from a series of articles published in a newspaper against the contract printer, publishers and writers. The contract printer, Merlin Printing Inc., subsequently brought a motion to dismiss the claim against it. The Supreme Court of New York granted the motion. In giving his reasons, Luciano J. stated at p. 233:

The defendant Merlin . . . did not undertake to confirm facts or to check sources. It did not exercise editorial judgment nor did it seek to determine the truth of the material which it printed. It merely offers a service to those who seek to disseminate thoughts via the written word.

The court found that the function of the contract printer was not to provide editorial services, but simply to reproduce documents.

It is apparent that the American cases focus on the purpose or function of today’s contract printer. This proposition is reflected in Callow J.’s statement in Maynard, at p. 507:

Port, like other contract printers, provides a quick and inexpensive printing service that by its low cost allows access to the print media by groups that would otherwise not find such access. If liability for failure to inspect were imposed on printers like Port, they would of necessity become censors and their services would become more expensive.

Increased costs might preclude the publication of small, low- budget newspapers. Such potential liability might also deter contract printers from contracting to print material they consider to be controversial. All this would have a deleterious effect on the free dissemination of information which is fundamental in our society.

Counsel for the respondent argues that innocent dissemination is not available to a printer to avoid liability in a defamation claim. He cites Newton v. Vancouver (City) (1932), 46 B.C.R. 67 (S.C.), in support of his position. In Newton, the plaintiff brought an action in libel against three defendants (“the Commissioners”), the Vancouver General Hospital (“the Hospital”) and the City of Vancouver, for statements made in a report prepared by the Commissioners. The Commissioners were appointed by the provincial government, the Hospital and the Vancouver City Council, to make a survey of the whole hospitalization situation as affecting greater Vancouver. The

report allegedly contained defamatory statements about the plaintiff. The City, upon receipt of the Commissioners’ report, gave instructions to have it printed and subsequently, circulated it, and the Hospital having received the copies of the printed report circulated them. The Hospital and the City argued the defence of innocent dissemination.

Counsel is of the view that MacDonald J. rejected the defence of innocent dissemination when he cited Emmens v. Pottle (1885), 16 Q.B.D. 354, 55 L.J.Q.B. 51 (C.A.), wherein it was held that innocent dissemination is not applicable to a printer or the first or main publisher of a work which contains a libel. It should also be noted that MacDonald J. also referred to Odgers on Libel and Slander, 6th ed., pp. 139-40, which provided that “[s]uch a defence is not open to the author, printers or the original publisher of the libel (Morrison v. Ritchie & Co. (1902), 4 F.645 (Ct. of Seas)” (emphasis added).

A close perusal of Newton reveals that the court found the City liable, not by virtue of being the printer, but because the City had known of the libellous words being printed (at p. 77):

There is no doubt that the city upon the receipt of the typewritten report from the commissioners, instead of simply filing it for further consideration, with a view of acting upon any recommendations or benefits to be derived therefrom, gave instructions to have it printed. Under the circumstances, I think the printing itself amount to publication, though the correctness of an earlier decision on this point has been questioned. The reason why I consider, that the printing alone amounted to “publication”, was because, although the mechanical work was done by the printers, who were under contract to the city, still the proof-reading was done by a portion of the staff in the city clerk’s office. Control and supervision was exercised. Even if the printing did not constitute publication still the subsequent extensive circulation by the city had that effect.

(Emphasis added)

It appears that the defence of innocent dissemination was not available to the City because it had knowledge of the libellous words and it participated in the circulation of the printed report. In my opinion, this case does not assist the respondent’s claim that innocent dissemination does not apply to printers. I see no contradiction in this case to the applicant’s position that the printer should not be held liable for defamation when it has no contact with the alleged libellous words.

In my opinion, U. of T. Press, as the printer and binder of the book, and nothing more, met the requirements of the defence of innocent dissemination as set out in Vizetelly. U. of T. Press, as simply the printer and not the editor, was innocent of any knowledge of the alleged libel contained in the book; there was nothing in the circumstances which ought to have led it to suppose that it contained an alleged libel; and, it delivered the copies of the book to its author and played no part in the circulation of the book.

Printers should not be held liable for defamation simply by virtue of being the printer. In light of the changing technology in the printing process, it would be unreasonable to hold a printer liable on the facts of this case.

Accordingly, I am of the opinion that U. of T. Press did not publish the subject material and, even if it did publish the subject material, the defence of innocent dissemination is available to release it from liability. Therefore, the applicant’s motion for summary judgment is granted with costs. If counsel cannot agree on costs, I may be contacted to fix costs.

 

Judgment accordingly.