Updated: May 24, 2019
Have you ever shared that funny post/video, posted by some unknown person or forwarded by one of your friends, in an email sent to a group of friends/colleagues? What if that post is alleged to be defamatory by the person who the post is intended to target and/or who the post is about? Can you be held liable, for simply sharing the already published post via an email sent to a group of your friends?
The answer lies in the definition of one word “publication”.
It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party [see Breeden v. Black, 2012 SCC]
So, what constitutes publication? It essentially means that the alleged defamatory material has been communicated to at least one more person than the plaintiff itself.
The question is, does sending/sharing a hyperlink with someone could constitute publication of the material?
Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked. [see Crookes v. Newton, 2011, SCC].
In a recent decision by the Court of Appeal of British Columbia, the above question was discussed at length.
The facts of the case in Malak v Hanna, 2019 are as under:
The plaintiff, Raoul Malak, the principal of the group of companies under the Ansan Group and the multiple defendants, at all material times were involved in the business of providing traffic control services, more commonly referred to as “flagging services”. Pursuant to “bitter falling” out of the business relationships and some business transactions not coming into fruition, an article was posted on the Internet. The introduction of that article read:
The following is the story of Raoul Malak the owner of the Ansan Traffic Group which includes Ansan Traffic Control, Lane Tec, BC Traffic Systems, Flag Girls and Alliance Traffic. This should serve as a precaution to anyone that has any business or personal dealings with him.
Among other things, the article alleged Mr. Malak to be “corrupt, a liar, a pimp, and someone who engages in criminal activity, including money laundering and tax evasion. It also alleged he was involved in “kickback schemes”. It was re-posted on numerous sites several times.
EMAILS WITH HYPERLINK(S)
One of the defendants, Mr. Jackman, circulated numerous emails to the industry professionals and others, sharing the hyperlinks to the article (and a related video) from the google toolbar etc. in the body of the email. It is pertinent to note here that the body of the emails, in most, did not reproduce any of the published material but rather only contained the hyperlink(s). However, the following subject lines were used:
· “Raoul Malak Uncovered | Find out the truth about Raoul Malak owner of Ansan Traffic Control”.
· “Raoul Malak Richmond « Ansan Traffic Control”.
· “Raoul Malak Uncovered | Raoul Malak Uncovered”.
An action was commenced by the plaintiff for defamation.
The trial judge inter alia:
1. Found the article and other publications defamatory.
2. Held the defences of qualified privilege, fair comment, and justification did not apply.
3. Further, held that one of the defendants, Mr. Jackman, had published the defamation when he sent emails containing the hyperlink to the material to other persons.
The defendants appealed.
Various grounds of appeal were raised and discussed by the court of appeal. The issue pertinent to the subject matter being discussed in this article was:
Did the trial judge err in finding Mr. Jackman had published the defamation when he sent emails containing the hyperlink to the material to other persons?
The question, again, is quite straightforward. Does sending a hyperlink constitute publication? The answer to the same, may not be that straightforward though. It depends. The court of appeal relied on Crookes v. Newton, 2011, where the Supreme Court of Canada provided the following propositions on deciding the issue:
a) the use of a hyperlink to defamatory content does not, by itself, amount to publication even if the hyperlink is followed and the content accessed:
b) when a person follows a hyperlink to defamatory content it is the actual creator or poster of that content who has published the libel:
c) “Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker.
In the case at bar, most of the emails only contained the hyperlink in the body of the email without any sort of reproduction of the published material itself.
The court of appeal found that the trial judge erred in dealing with this particular issue, allowing the appeal on this particular issue.
I am not completely in agreement with the decision. In my opinion, the subject lines used in the emails were essentially the sender’s version of the article and should have constituted publication. The sender clearly circulated the emails with specific intent to defame the plaintiff, opting for catchy subject lines. The subject lines, in no manner, were content neutral.