Niemela v. Malamas
Page 28
to which the hyperlink leads. Crookes did not address snippets and indeed Abella J.
[42]
Making reference to the existence and/or location of content by
hyperlink or otherwise, without more, is not publication of that content. Only
when a hyperlinker presents content from the hyperlinked material in a way
that actually repeats the defamatory content, should that content be
considered to be “published” by the hyperlinker. [Emphasis added.]
[93]
A snippet repeats words from the hyperlinked article and, as in the present
case, those words can be defamatory. For example, the following text is taken from
one snippet displayed in the Google search results of Mr. Niemela’s name: “Glenn J.
Niemela complaint review: Glenn J. Niemela he’s a scam artist and steals from his
clients while doing nothing to help them with their …”.
[94]
Using the traditional approach to publication, Google’s lack of awareness of
the content of the words it repeated on a search page snippet would not prevent it
from being a publisher, although it would likely be able to avail itself of the defence
of innocent dissemination after the prima facie test for defamation had been made
out. As Abella J. noted at para. 18 of Crookes:
[18]
Under this sole disseminator/sole reader paradigm, the breadth of
activity captured by the traditional publication rule is vast. In R. v. Clerk
(1728), 1 Barn. K.B. 304, 94 E.R. 207, for example, a printer’s servant, whose
only role in an act of publication was to “clap down” the printing press, was
found responsible for the libels contained in that publication, despite the fact
that he was not aware of the contents (p. 207). In Hird v. Wood (1894), 38
S.J. 234 (C.A.), pointing at a sign displaying defamatory words was held to be
evidence of publication. Other cases have also held that acts merely
facilitating communication can amount to publication: see, e.g., Buchanan v.
Jennings, [2004] UKPC 36, [2005] 1 A.C. 115; Polson v. Davis, 635 F.Supp.
1130 (D. Kan. 1986), aff’d 895 F.2d 705 (10th Cir. 1990); Crain v. Lightner,
364 S.E.2d 778 (W. Va. 1987), at p. 785; and Spike v. Golding (1895), 27
N.S.R. 370 (S.C. in banco). And in McNichol v. Grandy, the defendant was
found to be liable when he raised his voice and made defamatory statements
that were overheard by someone in another room.
[95]
As I have noted, however, the tenor of Crookes and of recent jurisprudence in
England is to narrow the test for who is a publisher of defamatory material to those
who do deliberate acts. In Canada this shift originates in the Supreme Court of
2015 BCSC 1024 (CanLII)
stated at para. 42:
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