Carter v. B.C. Federation of Foster Parents Assn.
[9]
Page 6
In holding that the Federation ought not to be found liable for the material
On the evidence before me, there is nothing in the network
newsletter to suggest a defamatory comment if a reader of the network
newsletter did no more than read the newsletter. In order to read the
alleged defamatory comments, it was necessary to go to the Bopeep
Forum. The address of the Bopeep Forum was listed in the Network
newsletter. This comment was contained among a myriad of other
unobjectionable comments posted on that site (i.e. the Bopeep Forum).
The law has held liable those who perpetuate defamatory
comments by permitting such comments to remain at premises
controlled by them even though they did not author or authorize the
original publication. See Byrne v. Deane, [1937] 2 All E.R. 204, Hellar
v. Bianco, 111 Cal. App. 2d 424 (Cal. 1952), Tacket v. General Motors
Corp., 836 F.2d 1042 (7th Cir.1987).
Additionally, liability has been found where a defendant wilfully
directed others to defamatory statements when he neither authored
nor authorized their publication on premises not controlled by him.
See Hird v. Wood (1894), 38 S.J. 234 (C.A).
Common to each of these two lines of authorities is that the
defendant had knowledge of the defamatory words and it lay within his
power to remove the offending words and he failed to do so or he
directed others to the words.
It is argued by the plaintiff that merely informing others in the
context of forwarding a newsletter that makes reference to a website
without reference or knowledge of its contents constitutes the
publication of the defamatory words contained within the Bopeep
Forum which was at the referred website.
Some analogous assistance may be found in cases where
reference was made to a magazine article that contains the defamatory
words without repetition of the article.
In MacFadden v. Anthony, 117 N.Y.S. (2d) 520 (Sup.Ct. N.Y.
1952), Eder J. of the New York County Supreme Court held that such
reference did not amount to a republication of the libel contained in the
magazine article.
Eder J. relied upon an earlier New York Court of Appeal
decision in Klein v. Biben, 296 N.Y. 638 (N.Y. Ct. App. 1946) that held
that the simple mention of an article that contained defamatory
2005 BCCA 398 (CanLII)
found on the Bopeep Forum the judge said this at paras. 51-59: