Publication (communication of defamatory material to someone other than the plaintiff) is an essential element in a defamation claim. In the recent decision in Malak v Hanna, 2019 BCCA 106 (“Malak”) the British Columbia Court of Appeal confirmed that merely sending a hyperlink to defamatory material does not constitute publication.
In Malak, the plaintiff and his group of companies (the “Ansan Group”) commenced an action against the defendants alleging that they engaged in a concerted effort to defame them. The parties were all involved in the business of providing traffic control services. After a falling out between Mr. Malak and one of the defendants, and the collapse of a transaction between the Ansan Group and the corporate defendant, an article was posted to numerous websites and blogs alleging that Mr. Malak was corrupt, a liar and involved in fraudulent schemes. In one version of the article there was a graphic depicting Mr. Malak in a prison cell dressed as an inmate. A defamatory poem about the plaintiffs was also posted on the internet and as a YouTube video.
The trial judge found the defendants jointly and severally liable for defamation and that they had engaged in a campaign to vilify the plaintiffs to gain a competitive advantage in the flagging industry. While the trial judge found that Mr. Hanna was responsible for drafting the defamatory content, he also found that the other defendants published the defamatory material when they emailed hyperlinks to the article and the poem.
All four defendants appealed. One of the grounds of appeal was that the trial judge made an error when he found that each email containing a hyperlink to the article and/or poem constituted a separate publication for which the person sending the hyperlink was responsible.
The Court of Appeal found that the trial judge had made an error in this regard. The Court relied on the Supreme Court of Canada’s decision in Crookes v. Newton, 2011 SCC 47 (“Crookes”) in which the Supreme Court found that making reference to the existence or location of content by hyperlink, without more, is not publication of that content. However, when a hyperlinker presents content from hyperlinked material in a way that repeats the defamatory content, the content is published by the hyperlinker.
In Crookes, the defendant operated a website on various issues including freedom of speech. One of the articles he posted had a hyperlink to other sites containing defamatory material about Mr. Crookes. The Supreme Court found that the defendant’s inclusion of the hyperlink on his webpage was not publication because by itself a hyperlink is content neutral and Mr. Crookes had not expressed an opinion on Mr. Crookes or the hyperlinked content.
In its decision the Supreme Court acknowledged the tension between the right to protect one’s reputation and the public interest of protecting freedom of expression. However, it found that the internet cannot provide access to information without hyperlinks and to limit their use by subjecting them to traditional publication rules would seriously impact the flow of information and freedom of expression.
It is difficult to characterize the emails in Hanna as content-neutral. The defendants intentionally emailed the hyperlink to people in the flagging industry and the subject lines generated by the Google Toolbar they used to send the hyperlink was some version of the article’s title. Some subject lines read: “Raoul Malak Uncovered”, “Ansan Traffic Exposed” and “You don’t want to work with Ansan Traffic Control.” In addition, some of the emails included messages such as “Here is your laugh of the day. A little write up about Brian’s new flagging company.” If sending targeted emails with the title of a defamatory article as the subject line containing a jokey message encouraging the recipients to read the defamatory article does not technically amount to reproducing the defamatory material, it comes awfully close.
With thanks to Meaghan Partridge, articling student for her assistance in drafting this blog.
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