Partner, Tim Delaney, counsel for the appellants along with Katherine McDonnell, Summer Law Student co-authored this case comment.
This was a defamation case. It was found at trial that Mr. Remon Hanna had authored certain defamatory materials and posted the materials on the internet. It was alleged the co-defendants, whom Mr. Delaney represented, had participated in a scheme with Mr. Hanna to disseminate the defamatory materials. The trial judge found the co-defendants were liable along with Mr. Hanna for the defamations. The co-defendants appealed and the appeal was successful. The Court of Appeal overturned the trial judge’s findings that the co-defendants had participated in a scheme with Mr. Hanna and ordered there should be a new trial. These comments will address two specific issues discussed by the Court of Appeal.
First, the Court of Appeal set aside the trial judge’s decision, even though the trial judge made it explicitly clear he did not think the co-defendants were credible. While the Court of Appeal rarely interferes in findings of credibility, the panel said they did not have any confidence that the trial judge did not conflate credibility determinations with factual findings.
The Court of Appeal succinctly said: “Disbelief of a witness is not proof of the opposite.” Thus, even though the trial judge ruled the defendants were not credible, the Court of Appeal was not satisfied the evidence established that the co-defendants had acted in concert with Mr. Hanna to defame the plaintiffs. For this reason, they directed a new trial.
Second, the Court of Appeal discussed the issue of publication of defamatory material on the internet. In this case the defamatory material was located on numerous websites. One of the co-defendants had sent emails to some friends and co-workers with hyperlinks to the defamatory websites. There were no additional comments in the emails beside an occasional pithy statement like: “I just saw this this morning” or “Laugh of the day”. The trial judge found these emails were in and of themselves publications of the defamatory material.
In an earlier case, however, the Supreme Court of Canada had ruled (Crookes v Newton, 2011 SCC 47) that directing someone to a hyperlink to defamatory content found on the internet, without more, does not constitute publication. In Crookes, the defendant owned and operated a political, free speech website. The material on the website did not defame the plaintiff, but contained hyperlinks to material which did. The plaintiff informed Mr. Crookes the sites were defamatory, and asked him to remove the hyperlinks. He refused to remove the hyperlinks, and was subsequently sued. The Supreme Court of Canada eventually dismissed the case against Mr. Newton, stating that as a matter of policy, hyperlinks directing readers to defamatory material by itself, does not amount to publication in law.
Unlike in Crookes, the hyperlinks in Malak were not buried in the text of a website. They were basically the only content of the emails. Notwithstanding this distinction, the Court of Appeal applied Crookes, ruling that the emails did not amount to publication of the defamatory materials. Therefore, the claims against the co-defendants for this conduct, were dismissed.
This ruling raises some interesting questions regarding what may or may not constitute publication of defamatory internet material in future cases. The Crookes and Malak decisions could be applied in other circumstances. For example, it will be interesting to see how courts may treat a claim against a person who posts defamatory material, authored by someone else, on his or her Facebook page or other social media platform. If the person has not personally repeated the defamatory material, and does not comment on the veracity or authenticity of the material, these cases suggest that such conduct, by itself, is unlikely to amount to publication in law.
If you are considering an appeal, please direct inquiries to Tim Delaney, at [email protected] or 604 484 3059.
 | Tim Delaney Partner, Appellate Lawyer Lindsay Kenney – Vancouver Office |
 | Katherine McDonnell Summer Student |