Niemela v. Malamas Page 29 Canada’s recognition post-Charter “that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the v. Scientology. [96] It is worth noting at this point that the English approach requiring a deliberate act to establish publication (the passive instrument test) is related to, but distinct from, the defence of innocent dissemination which is a well-settled principle in Canadian defamation law. [97] As described in Crookes at para. 20 and in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 at para. 89, a defendant in a subordinate publisher role can avail itself of the defence of innocent dissemination by showing that it: [98] 1. had no actual knowledge of an alleged libel; 2. is aware of no circumstances to put it on notice to suspect a libel; and 3. committed no negligence in failing to find out about the libel. In short, the defence is available to defendants who, while not the creator of the defamatory material, disseminate the material in a manner that would ordinarily amount to publication save for the innocent nature of the dissemination. [99] In substance, the passive instrument test appears to have requirements very similar to the defence of innocent dissemination. However, it shifts the burden of proof from the defendant to the plaintiff. Where innocent dissemination is pleaded, the defendant bears the burden of showing that it had no actual knowledge of an alleged libel, was aware of no circumstances to put it on notice to suspect a libel, and committed no negligence in failing to find out about the libel. [100] On the other hand, if the passive instrument test is applied the plaintiff bears the burden of showing that the defendant was not a mere passive instrument 2015 BCSC 1024 (CanLII) public’s interest in protecting freedom of expression”: Crookes at para. 31, citing Hill