Niemela v. Malamas a) Is Google a publisher of the text found at URLs identified in search results? The claim that Google is a publisher of statements contained on websites whose URLs are identified in a search cannot succeed in light of Crookes v. Newton, 2011 SCC 47. [57] In that case, the defendant Newton operated a website in which he referred to the plaintiff Crookes and provided a hyperlink to an allegedly defamatory article, and another hyperlink to a page containing other articles said to be defamatory of Crookes. Crookes sued Newton for defamation, alleging that by creating the hyperlinks or, alternatively, by refusing to remove the hyperlinks when told of their defamatory character, Newton was rendered a publisher of the articles. The action failed in all courts. [58] Three judgments were given in the Supreme Court of Canada, all concurring in the result, but differing as to the test to be applied in determining when, if ever, a hyperlink should be seen as publication of the material to which it refers. [59] Speaking for six judges, Abella J. held that a hyperlink, by itself, should never be seen as publication of the content in question (at para. 44). She traced the development of the common law from a traditional broad rule that captured any act by which defamatory meaning was conveyed to a third party to a more nuanced approach. She approved of this development and, at para. 21, pointed to two recent English cases that expanded upon this trend: Bunt v. Tilley, [2006] EWHC 407, [2006] 3 All E.R. 336 (Q.B.); Metropolitan International Schools Ltd. v. Designtechnica Corpn., [2009] EWHC 1765, [2011] 1 W.L.R. 1743 (Q.B.). She stated at para. 26: [26] A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not. Even where the goal of the person referring to a defamatory 2015 BCSC 1024 (CanLII) [56] Page 17