Niemela v. Malamas Page 30 because at the initial prima facie stage the plaintiff must prove the third element of [101] The majority in Crookes did not expressly adopt the passive instrument test for publication, but Abella J. endorses Metropolitan which applied it. Furthermore, much of the majority’s reasoning for concluding on public policy grounds that hyperlinks should not be treated as publication, applies with equal or greater force to search results. Abella J. observed at paras. 34 and 36: [34] The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged” (SOCAN, at para. 40, per Binnie J.). Hyperlinks, in particular, are an indispensable part of its operation. As Matthew Collins explains, at para. 5.42: Hyperlinks are the synapses connecting different parts of the world wide web. Without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it. (See also Lindsay, at pp. 78-79; Mark Sableman, “Link Law Revisited: Internet Linking Law at Five Years” (2001), 16 Berkeley Tech. L.J. 1273, at p. 1276.) … [36] The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity. [102] There are hundreds of millions of active websites over the Internet and trillions of webpages. Search engines make the Internet a viable and effective information and communication resource. The Internet cannot be successfully navigated without search services such as those Google provides. If hyperlinks are the pathways search engines are the maps. Without snippets, which give a sample of the text in which the search terms are imbedded, navigating the Internet would be 2015 BCSC 1024 (CanLII) publication.