The B.C. Court of Appeal's recent decision in Pineau v. KMI Publishing and Events Ltd. clarifies that although sharing a hyperlink to a defamatory article published by a third party does not establish liability for defamation, sharing a hyperlink to a defendant's own defamatory article—and thereby increasing its circulation—should be considered in assessing damages. Given the widespread use of social media platforms by businesses and individuals alike, this principle may have a significant impact on damages assessments in internet defamation cases.
Facts
The plaintiff was the CEO of Viscount Systems Inc. ("Viscount") for over a decade until 2014, when he was terminated from his position without cause. Nine months later, Viscount sued the plaintiff and alleged that he had used its corporate Visa account to cover expenses without a clear business connection. Two months later, the plaintiff filed a response to civil claim denying the allegations and a counterclaim seeking damages for wrongful dismissal and breach of contract. Two articles referring to the lawsuit were then published in the magazine Business in Vancouver ("BIV").
Less than 24 hours after the second BIV article was published, the defendants published their own article (the "Article") based on the information provided by the second BIV article. The Article focused on Canada's lack of protection for corporate whistleblowers, and the defendants used Viscount's claim against the plaintiff to call for better fraud detection and independent whistleblower systems in Canadian corporations. The defendants published the Article online, shared a hyperlink to the Article in emails and Twitter posts, and sent the hyperlink to subscribers of its newsletter. After the plaintiff discovered the Article, he emailed the defendants and, after receiving no response, filed a notice of civil claim against them.
B.C. Supreme Court's Decision
The B.C. Supreme Court ruled in the plaintiff's favour and found the defendants liable for defamation. After analyzing the impact of the Article on the plaintiff, the nature of the libel, the mode and extent of publication, the economic loss and loss of opportunity, the absence of apology, and the conduct of the defendants, the trial judge awarded general damages of $60,000. While analyzing the mode and extent of publication, the trial judge relied on the Supreme Court of Canada's decision in Crookes v. Newton to conclude that sharing hyperlinks to the Article through Twitter, email, and newsletter did not constitute publication for the purpose of defamation.
B.C. Court of Appeal's Decision
The B.C. Court of Appeal allowed the plaintiff's appeal on damages. Among other things, the Court of Appeal held that the trial judge erred in his analysis of the mode and extent of publication of the Article when assessing damages. Specifically, he failed to consider the defendants' conduct in sharing a hyperlink to the Article when assessing damages.
The Court of Appeal distinguished Crookes to hold that a defendant's conduct in sharing a hyperlink to the defendant's own defamatory material is relevant to assessing damages. In Crookes, the defendant published on his website a hyperlink to a defamatory article created by a third party over which he had no control. The issue was whether defendants can be liable for posting hyperlinks to defamatory material they did not create. The Supreme Court of Canada held that although a hyperlink may expand the audience for the defamatory publication, "it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content". Considering hyperlinks as an original publication would restrict the flow of information on the internet and freedom of expression. But in the present case, liability was not at issue. Instead, the issue was whether a defendant's conduct in sharing a hyperlink to defamatory material they created is relevant to assessing damages.
The Court of Appeal reasoned that although the trial judge did not explicitly exclude the defendants' circulation of a hyperlink from his assessment of damages, this exclusion was implicit in his analysis. The Court of Appeal held that this exclusion was in error: this circulation was relevant to assessing damages. In the result, the Court of Appeal set aside the trial judge's $60,000 general damages award and substituted a $120,000 general damages award.
Key Takeaways
The Court of Appeal's decision does not change the law established in Crookes. Instead, it highlights the difference between a party sharing someone else's defamatory material via hyperlink and a party sharing their own defamatory material via hyperlink. Sharing someone else's defamatory material via hyperlink, as seen in Crookes, does not establish liability. But sharing one's own defamatory material via hyperlink, provided liability has been established, is relevant to assessing damages. Given the widespread use of social media platforms by businesses and individuals alike, this difference can be significant in internet defamation cases.
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