Niemela v. Malamas Page 27 I have already referred to the reasons of Abella J. on this point at para. 26 of Crookes. In concurring reasons, at paras. 50 and 51, McLachlin C.J. and Fish J. advanced an alternative publication standard for hyperlinks: [50] In sum, in our view, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. [51] It is true that the traditional publication rule does not require the publisher to approve of the material published; he or she must merely communicate that material to a third party. However, the proposed adoption or endorsement standard for references is conceptually different. A mere reference without any adoption or endorsement remains that — a contentneutral reference. [89] Deschamps J., in her concurring reasons, also noted that proof of publication is necessary in order to establish liability for defamation. At para. 55 she referred to the traditional test for publication: [P]ublication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood. [90] At para. 56 she framed the issue before the court as “whether the first component of publication needs to be reconsidered owing to the impact of new forms of communications media.” [91] Deschamps J. concluded that only deliberate acts can lead to liability: [59] A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation. [Emphasis in original.] [92] In considering these passages in Crookes I am mindful that the narrow ratio of that case is that providing a hyperlink does not constitute publication of the article 2015 BCSC 1024 (CanLII) [88]