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Tag: Defamation

Canadian Court Asserts Jurisdiction in Defamation Lawsuit Against Twitter

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an application to decline jurisdiction of a defamation lawsuit against twitter.

In today’s case (Giustra v. Twitter, Inc.) the Plaintiff brought a lawsuit against Twitter claiming damages and an injunction for defamatory tweets authored by others and relayed on Twitter’s internet platform.  Twitter argued that the lawsuit should be brought in the US and that there the claim was bound to fail as they enjoy the protections of Section 230 of the Communications Decency Act of 1996, 47 USC (1996), which “protects freedom of speech on the internet by providing internet platforms such as Twitter with immunity against liability for tort claims arising from the dissemination of content from third-party users.

The BC Supreme Court was unpersuaded and found to the extent that the tweets were published in Canada, involving a Canadian plaintiff, making personal allegations against that plaintiff and causing harm to him in Canada with the Defendant having over 500,000 users here the Court was firmly within its rights to accept jurisdiction.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

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$229K in Damages Awarded for “Relentless” and “Extensive” Internet Defamation Postings

Reasons for judgment were released earlier this year (and published this week) by the BC Supreme Court, Vancouver Registry, awarding just over $229,000 in damages to a Plaintiff on the receiving end of a “relentless” and “extensive” on line defamation campaign.

In today’s case (Rook v. Halcrow) the parties were involved in a romantic relationship.  Shortly after it came to an end several on line postings were published across multiple platforms making disparaging remarks about the Plaintiff.

The Defendant denied making the multiple postings but the Court rejected this and found her liable for them.  In assessing general damages at $175,000, aggravated damages at $25,000 and further awarding special damages related to the Plaintiff hiring a reputation management company to remove the posts Mr. Justice Myers provided the following reasons:

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Defamatory Facebook Post Leads to $65,000 Damage Award

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay $65,000 in damages following a defamatory Facebook post.
In today’s case (Pritchard v. Van Nes) were neighbors who had “tensions” between them.   The Defendant published some troubling posts on Facebook that “in their natural meaning and by innuendo, bore the meaning that the plaintiff was a paedophile“.   The court found that these suggestions “were completely false and unjustified“.
The Plaintiff successfully sued the Defendant for defamation.  In awarding $50,000 in general damages and a further $15,000 in punitive damages Mr. Justice Saunders provided the following reasons:

[122]     The seriousness of Ms. Van Nes’ defamatory Facebook post, her replies, and the comments of her “friends” cannot be overstated. An accusation of paedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity. The identity of Mr. Pritchard is especially relevant in this case. Through his engagement in extra-curricular activities he occupies a position of trust as a music teacher for children. Through hard work and dedication to his students, he had earned the community’s respect and admiration, as clearly established on the evidence. I find that he now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point.

[123]     The vehicle through which Ms. Van Nes chose to publicize her defamatory accusations provided the court with further evidence of the damage to his reputation; that there were individual replies from 37 of Ms. Van Nes’ Facebook “friends” within less than 24 hours clearly documents the quick degradation of Mr. Pritchard’s estimation in the eyes of others..

[131]     I do not find that the claim of malice has been made out. Taken in its entirety, the evidence of the defendant’s actions – her self-centred, unneighbourly conduct; her failure to respond reasonably to the plaintiff’s various complaints, particularly regarding her dog; and her thoughtless Facebook posts – point just as much to narcissism as to animosity. Her belief that the decorative mirror hung on the exterior of the plaintiff’s house was some sort of surveillance device was simply ridiculous, speaking, to be blunt, more of stupidity than malice.

[132]     The defendant, as I see it, appears to have thoughtlessly taken to a social medium to give vent to her feelings, making reckless statements without any regard to the consequences. She certainly ought to have anticipated the potential impact of her remarks; whether she actually did so has not been proven.

[133]     The defendant’s subsequent actions bear none of the indicia of malice discussed at para. 191 of Hill: she removed the posts relatively quickly, probably when the gravity of the situation became apparent to her through the police presence at the plaintiff’s home; she did not seek to publicize the proceedings, giving rise to further dissemination of the defamation; she did not file a defence.

[134]     Aggravated damages are not in order, but given the seriousness of the allegations and the extent of the harm suffered, a significant award of general damages is. I award the plaintiff general damages for defamation of $50,000.

[135]     I further find this an appropriate case for an award of punitive damages, as a means of rebuking the plaintiff for her thoughtless, reckless behaviour. She acted without any consideration for the devastating nature of her remarks. With regard to the factors enunciated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 13, a punitive damages award must be proportionate to the defendant’s blameworthiness, which in this case is high; the defendant’s vulnerability, which is also high; the harm suffered by the plaintiff, which has been considerable; and the need to publically denounce the defendant and thus bring to the notice of the public the dangers of ill-considered remarks being made in social media and the serious consequences of such conduct.

[136]     I award the plaintiff additional punitive damages of $15,000.

Complaints Made to Police Prior to Charges Can Be Defamatory

Reasons for judgement were released today by the BC Court of Appeal finding that complaints made to the police prior to the commencement of judicial proceedings are subject to qualified, not absolute, privilege and therefore can be used as the foundation of a defamation action.
In today’s case (Caron v. A.) the Plaintiff alleged that the Defendant (appellant) “went to the RCMP where [the appellant] falsely accused (the Plaintiff) of rape“.
The Plaintiff was not charged.  The Plaintiff then sued the Defendant for defamation.  The Defendant sought to dismiss the claim arguing that statements made to police are subject to absolute privilege and cannot be used in a defamation lawsuit.  The BC Court of Appeal disagreed finding that such statements made prior to the commencement of judicial proceedings were only protected by qualified privilege and, as such, if the dominant motive for publishing the statement is actual or express malice the statements could be used in a defamation lawsuit.  In reaching this decision the BC Court of Appeal provided the following reasons:

[15]         Qualified privilege applies when there is a “duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it”: Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257 at 296 (C.A). The legal effect of the defence of qualified privilege is to “rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. . . . However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice”: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 144. In short, where there is a public or shared interest in support of the statement both being made and received, a defendant cannot be held to have defamed a plaintiff unless the plaintiff can show that the defendant made the alleged publication for a malicious purpose.

[16]         Absolute privilege, on the other hand, provides a complete defence in cases of alleged defamatory publications, even if the defendant published the statement with actual malice. Traditionally, absolute privilege was granted to any “communications which take place during, incidental to, and the processing and furtherance of, judicial or quasi-judicial proceedings”: Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115 at para. 112, citing Raymond E. Brown, The Law of Defamation in Canada, (Toronto: Carswell, 1999) at para. 12.4(1)…

[37]         In summary, the law in Canada, at least at the trial level, appears to be quite consistent that only a qualified, and not an absolute, privilege applies to initial complaints made to the police before the commencement of judicial proceedings. Trial level decisions in Nova Scotia, Ontario, and British Columbia, while not binding on this Court, have all reiterated this principle.

[38]         The appellant can therefore only succeed on the issue of absolute privilege if this Court were to expand the defence so as to include complaints to the police. This is a step further than any jurisdiction in Canada has, as of yet, gone. The appellant argues that such an expansion is justified on the basis of public policy…

[52]         In my opinion, the appellant is asking this Court to expand the defence of absolute privilege beyond its current borders in Canadian law. There is some precedent for such an expansion in English and U.S. law. The onus for justifying such an expansion is on the appellant, and the test the appellant must meet is as described by Cromwell J.A. in Elliott: The expansion must be found to be necessary in order to protect the proper administration of justice.

[53]         In my opinion, it would not be appropriate for this Court to make such a determination at this time, without the benefit of an evidentiary record.

[54]         Statements to police prior to the commencement of judicial proceedings are protected by qualified privilege, not absolute privilege, under Canadian law. In order to expand the defence of absolute privilege, the appellant must show that such an expansion is necessary in order to protect the administration of justice. The appellant cannot meet that onus in the current appeal, as there is no evidentiary record with which to support her argument or suggest that an expansion to absolute privilege, rather than an application of qualified privilege, is necessary in order to protect the proper administration of justice:  Northwest Organics v. Maguire, 2014 BCCA 454.

[55]         I would dismiss the appeal on this issue.


Supreme Court of Canada Confirms Hyperlinks On Their Own Are Not Defamatory

Although not a personal injury case, the Supreme Court of Canada released reasons for judgement today which I have been eagerly awaiting as a legal blogger.  In short the Supreme Court of Canada ruled that “making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content“.
In today’s case (Crookes v. Newton) the Defendant posted hyperlinks on a website he owned and operated to articles about the Plaintiff which were allegedly defamatory.  He did not author the allegedly defamatory articles.
The Plaintiff sued arguing the act of hyperlinking to defamatory content amounts to republishing the content and hence is also defamatory.   His case was dismissed at trial.  The BC Court of Appeal also dismissed the case finding that “there is no basis for finding a presumption of publication of the hyperlinked articles and that the mere fact (the Defendant) hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites”.  You can click here for my 2009 article discussing the Court of Appeal’s judgement.
The Supreme Court of Canada unanimously dismissed the Plaintiff’s final appeal.  In authoring the majority judgement Justice Abella provided the following reasons:

[] A hyperlink is a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information.  Clicking on the hyperlink connects the reader to that information.

[] The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material. ..

[] 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.

[] I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet.  Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments.  It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58).  Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory.  In Barrick Gold Corp. v. Lopehandia , (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64: ..

[] But I am not persuaded that exposing mere hyperlinks to the traditional publication rule ultimately protects reputation.  A publication is defamatory if it both refers to the plaintiff, and conveys a defamatory meaning: Grant, at para. 28.  These inquiries depend, respectively, on whether the words used or “the circumstances attending the publication are such as[] would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred” (Brown, at para. 6.1), and whether the words would “tend[] to lower a person in the estimation of right-thinking members of society” (Botiuk v. Toronto Free Press Publications Ltd., at para. 62).  Defamatory meaning in the words may be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented” (Botiuk, at para. 62, citing Brown (2nd ed. 1994), at p.1-15).  (See Brown, at paras. 5.2, 5.4(1)(a) and 6.1; Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116 (H. L.); Butler v. Southam Inc., , 2001 NSCA 121, 197 N.S.R. (2d) 97; Bou Malhab v.Diffusion Métromédia CMR inc., , 2011 SCC 9, [2011] 1 S.C.R. 214, at paras. 63 and 112; Botiuk, at para. 62.)

[] Where a defendant uses a reference in a manner that in itself  conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant.  In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actuallyexpressed something defamatory (Collins, at paras.  7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).

[] Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations.  As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to.  If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content.

[] 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.  Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.  While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.

[] I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies.  As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available.  Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.

Damages for Violations of Privacy in BC

(Update: The below decision was upheld by the BC Court of Appeal in December, 2011)

As I’ve previously written, the BC Privacy Act allows individuals to sue where their privacy is violated “wilfully and without a claim of right” by another person.  This powerful law permits such lawsuits to succeed even where a Plaintiff cannot prove actual damages.
Despite the strength of the BC Privacy Act, relatively few reported decisions have been released applying this law in the years that it has been on the books.  Useful reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying this law in combination with a claim for damages for defamation.
In today’s case (Nesbitt v. Neufeld) the Plaintiff and Defendant were involved in “protracted family litigation” During the course of that litigation one of the parties “resorted to out-of-court publications that are plainly private to the litigants“.  The reasons for judgement are worth reviewing in full for the details but these apparently included “private communications…released to third parties and made available to the public (including)…a YouTube video…a website…a Facebook Page…(and) a letter to the Ministry of Child and Family Development”
The victim sued arguing she was defamed and further that her privacy rights were unreasonably violated.  Mr. Justice Crawford agreed and awarded the Plaintiff $40,000 in damages.   In reaching this award the Court provided the following reasons:

[89]         The B.C. Court of Appeal in Davis v. McArthur (1970), 17 D.L.R. (3d) 760, [1970] B.C.J. No. 664 (QL) (C.A.), said this in the course of its judgment at para. 9 of QL:

To constitute the tort [of violation of privacy] the violation must be committed “wilfully and without a claim of right”. The nature and degree of privacy to which the person is entitled in any situation or in relation to any matter is fully set out in s-s (2) [now ss. 1(2) and 1(3)] and, in my opinion, no useful purpose would be served in attempting to elaborate upon the words contained therein. Regard must be had to the provisions of the subsection as a whole. It is plain that whether there has been a violation of privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment [10 D.L.R. (3d) 250 at p. 255, 72 W.W.R. 69]: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2) [now ss. 1(2) and 1(3)].

[90]         In Hollinsworth v. BCTV, a division of Westcom T.V. Group Ltd. (1999), 59 B.C.L.R. (3d) 121, 113 B.C.A.C. 304, the Court of Appeal defined the term “wilfully” to mean “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person” (at para. 29 of B.C.L.R.).

[91]         Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal…

[96] Had Dr. Nesbitt restricted his communications within the confines of the family court litigation where he had counsel to advise him of the bounds of legitimate expression of his opinions, the issues before me in this proceeding might not have arisen. I say “might” because I note that certain publications of Dr. Nesbitt prompted an application to the family court that resulted in a consent order made on September 8, 2008 before Master Caldwell restraining Dr. Nesbitt from making further improper communications…

[102] The reality is that Dr. Nesbitt has taken his battle with Ms. Neufeld over custody and access far outside the ordinary confines of the family court litigation. Even worse his lack of appreciation for the proper boundaries of communication of his opinions has spread to besmirch persons that are friends of Ms. Neufeld.

[103] Dr. Nesbitt disclosed matters private to the parties in a manner that defamed Ms. Neufeld; he is the publisher of the defamatory materials at issue.

[104] For breach of privacy and the defamation aspects of the defendant’s claim, I set that amount at $40,000.

[105] I only limit the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory materials were put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash. Indeed, if I read between the lines, the communications to the Rotary Club, the Ministry and the Child’s doctor were treated with the disdain they deserved.

The Court went on to award the victim ‘special costs’ in order to rebuke the other parties ‘reprehensible conduct‘.  The ease created by social media platforms in allowing individuals to quickly publish material to the Internet will likely make claims such as these more prevalent in the years to come.  With this, damage awards for privacy violations will hopefully be shaped into predictable ranges.

Defamation Law – Hyperlinks and Publication

An important case was released today by the BC Court of Appeal (Crookes v. Newton) dealing with defamation law.  When a Defendant is sued for defamation it must be proven that defamatory material was “published”.  Today’s case was the first from a Canadian Appellate Court which dealt with the issue of whether an author of an article who provides a hyperlink to another article which contains defamatory material constitutes ‘publication’.
The BC Court of Appeal held that “there is no basis for finding a presumption of publication of the hyperlinked articles and that the mere fact (the Defendant) hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites”.  The key discussion is set out at paragraphs80-93 which I set out below:

[80] There are two aspects to the publication element of the tort of defamation. The first, relating to the defendant as publisher, concerns the act of promulgating the impugned item. The second, relating to the third party receiver of the impugned item, concerns the receipt of that item by a person within the court’s jurisdiction. (I refer to the issue of jurisdiction because publication, to be actionable, must be within this jurisdiction, and publication of internet material occurs where the words are read:  King v. Lewis, [2005] E.M.L.R. 45, C.A.;Gutnick v. Dow Jones, [2002] H.C.A. 56.) In my respectful view, the reasons for judgment of my learned colleague mix these issues as one.

[81] The first of these two aspects is whether, by creating the hyperlinks in question, Mr. Newton can be seen to have promulgated a writing or message that is defamatory of the appellant. A near case was considered by this Court in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1. The issue in Carter was whether the defendant, in publishing a web address at which the allegedly defamatory material was contained, had re-published that material. Mr. Justice Hall, for this Court, in holding it did not, said:

[12]      In my opinion, the factual situation here is closer to the situation found to exist in the New York cases of MacFadden v. Anthony, 117 N.Y.S. (2d) 520 (Sup. Ct. 1952) andKlein v. Biben, 296 N.Y. 638 (Ct. App. 1946), referred to by the trial judge, where the courts held reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment.

[82] While the circumstances of Carter differ from those before us, there is, in my view, no substantial difference between providing a web address and a mere hyperlink. Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.

[83] Nor am I persuaded that in this era of rapidly changing technology we should assume access from a mere web address mentioned in an article will require any more effort than from a hyperlink. It is easy to contemplate a program whereby a click of a computer mouse engages a program on the reader’s computer that effects the same result as a hyperlink. In other words, I agree with my colleague’s conclusion at para. 58:

I agree with the trial judge that the reasoning of this Court in Carter supports Mr. Newton’s position that the mere fact he hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites.

[84] I agree, as well, that the circumstances of a case may add more so as to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to go to a jury. So a statement to the effect “N is described at [hyper link]” may itself incorporate a libel so as to be defamatory.

[85] In the case before us, the judge held concerning the context of the hyperlinks:

[32]      In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself.  The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles.  In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content.

[33]      As the Court of Appeal observed in Carter, citing the proposition of the New York cases MacFadden v. Anthony and Kline v. Biben, “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”.

[86] In these observations, in my view, the judge was entirely correct.

[87] My colleage considers that the judge did not fully explore the context of the hyperlinks in determining Mr. Newton had not participated in publishing the impugned articles. In her view the fact Mr. Newton’s article containing the hyperlinks deals with free speech and defamation, and the fact it refers to lawsuits involving Mr. Crookes, serve “as words of encouragement, or an invitation”, to look further.

[88] For clarity, the article on Mr. Newton’s website under the headline “Free Speech in Canada” said:

Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.

[89] With respect, I see no encouragement or invitation from the fact the discussion concerns free speech and defamation. Nor, in my view, can reference to Mr. Crookes’ litigation reasonably have that effect. Those factors, at a minimum, alert the reader to the potential for untrue content or disputed commentary. They fall far short of a statement of approbation, or adoption, and appear to me to be most comparable to a footnote for a reader, or a card index in a library. It is not, as was suggested is sometimes the way in the recent caseMetropolitan Schools v. Google Inc., [2009] E.W.H.C. 1765 (Q.B.), a snippet from the article or a snippet produced by a search engine.

[90] On these considerations I conclude Mr. Newton was not a publisher because of his hyperlinks to the offensive article.

[91] The second aspect of publication is whether it can be inferred a person accessed the impugned articles by way of the hyperlinks. My colleague would conclude, from the fact of 1,788 “hits” of Mr. Newton’s article that at least one person within this jurisdiction, did so.

[92] In my view, the approach taken by my colleague to the effect that from the number of persons accessing Mr. Newton’s website it may be inferred that a person in this jurisdiction accessed the impugned articles by clicking on them, does not sustain scrutiny. In the context of internet life, we have no way to assess the volume of “hits” here compared to the norm, the usual behaviour of internet readers or “surfers”, or the jurisdiction in which they reside. The conclusion drawn by my colleague is, with respect, tantamount to a presumption that in the case of a website accessed to any significant extent, there has been communication of the offensive material. This is contrary to her conclusion on the issue of presumption, and one with which I do not agree. The conclusion effectively reduces the element of publication to the role of the publisher without consideration of the receipt of the impugned material. There may be cases in which more is known supporting such an inference, but such is not the case here where all that is before us is the bald number of hits. In my view there is an insufficient basis upon which to make such an inference, and the inference drawn cannot co-exist with the reasons for judgment on the matter of a presumption.

[93] Last, the appellant complains that Mr. Newton did not remove the hyperlinks when asked to do so. This is not a question considered by the judge, and findings of fact are not contained in the reasons for judgment to support a discussion of that interesting issue. But for my conclusion on the question of drawing an inference that a person clicked on the hyperlink, I would allow the appeal and remit this question to the trial court for determination. However, in view of my conclusion on the question of inference, I would dismiss the appeal.