The recent decision of the BC Court of Appeal in Pineau against KMIPublishing and Events Ltd. clarifies that while sharing a hyperlink to a defamatory article published by a third party does not create liability for defamation, sharing a hyperlink to a defendant’s own defamatory article – and thereby increasing the circulation – should be taken into account in determining damage. Given the widespread use of social media platforms by businesses and individuals, this principle can have significant implications for determining damages in internet defamation cases.
Plaintiff was CEO of Viscount Systems Inc. (“Viscount”) for over a decade until he was fired from his position without reason in 2014. Nine months later, Viscount sued the plaintiff, alleging that he had used his company Visa account to cover expenses with no clear business connection. Two months later, the plaintiff filed a response to the civil complaint dismissing the allegations and a counterclaim for damages for wrongful termination and breach of contract. Two articles related to the lawsuit were subsequently published in Business in Vancouver (“BIV”) magazine.
Less than 24 hours after the publication of the second BIV article, the Defendants published their own article (the “Article”) based on the information from the second BIV article. The article focused on Canada’s lack of protection for corporate whistleblowers, and the defendants used Viscount’s allegation against the plaintiff to call for better fraud detection and independent whistleblower systems in Canadian companies. The defendants published the article online, shared a hyperlink to the article in emails and Twitter posts, and sent the hyperlink to subscribers to their newsletter. After discovering the item, the plaintiff emailed the defendants and, having received no response, filed a civil suit against them.
BC Supreme Court Decision
The BC Supreme Court ruled in favor of the plaintiff and found the defendants liable for defamation. After analyzing the effect of the article on the plaintiff, the nature of the defamation, the nature and extent of the disclosure, the economic loss and loss of opportunity, the lack of an apology, and the conduct of the defendants, the trial judge awarded general damages of $60,000. In analyzing the nature and extent of the publication, the trial judge relied on the Canadian Supreme Court’s decision in Crookes v. Newton to conclude that sharing hyperlinks to the article via Twitter, email and newsletter does not constitute a publication for the purpose of defamation.
BC Court of Appeals Decision
The BC Court of Appeal granted plaintiff’s claim for damages. Among other things, the Court of Appeals found that the trial judge erred in his analysis of the manner and extent of publication of the article in determining damages. In particular, he failed to consider the defendants’ behavior by sharing a hyperlink to the article when determining the damages.
The Court of Appeal ruled Crookes that a defendant’s conduct in sharing a hyperlink to his own defamatory material was relevant to the assessment of damages. In the Crookes case, the defendant posted a hyperlink on its website to a defamatory article that was produced by a third party and over which it had no control. The question was whether defendants could be held liable for posting hyperlinks to defamatory material that they did not create. The Supreme Court of Canada ruled that although a hyperlink can broaden the audience for the defamatory publication, “When a person follows a hyperlink to that content, it is the actual creator or author of the defamatory language in the secondary material who publishes the libel “. . Considering hyperlinks as original publications would restrict the flow of information on the Internet and freedom of expression. But in the present case liability was not in question. Instead, the question was whether a defendant’s behavior when sharing a hyperlink to defamatory material he had created is relevant to the assessment of damage.
The Court of Appeals justified this by saying that the trial judge did not expressly exclude the dissemination of a hyperlink by the defendants from his assessment of damages, but that exclusion was implicit in his analysis. The Court of Appeal found that this exclusion was flawed: this circulation was relevant to the assessment of damages. As a result, the Circuit Court of Appeals vacated the trial judge’s US$60,000 in general damages claim and substituted US$120,000 in general damages.
The central theses
The Court of Appeal’s decision does not change the law in force in Crookes. Instead, it highlights the difference between a party sharing another person’s defamatory material via a hyperlink and a party sharing its own defamatory material via a hyperlink. Sharing another person’s defamatory material via a hyperlink, as seen in Crookes, does not create liability. However, sharing your own defamatory material via hyperlink is relevant to compensation if liability has been established. Given the widespread use of social media platforms by businesses and individuals, this difference in internet defamation cases can be significant.