Publication and Hyperlinks

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 227-264

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 : Publication and Hyperlinks

A. BASIC PRINCIPLES

See Roger D. McConchie a nd David A. Potts in Canadian Libel and Slande r

Actions (Toronto: Irwin Law, ) at –:

) An Essential E lement

Proof of publication by the defendant to a third party is a n essential element

in an action for defa mation and the burden of proving thi s element rests on

the plainti.

Gaskin v. Retail Credit Co., [] S.C.R.  per Ritch ie J.

Arnott v. College of Physicia ns and Surgeons of Saskatche wan, [] S.C.R. 

per Locke J. at .

Dickho v. Armadale Co mmunications (),  D.L.R. (th) , per Lane

J.A. at  (Sask. C. A.).

Pressler v. Lethbri dge (),  B.C.L.R. ( d) , per Southin J.A . at para. 

(C.A.).

) Publication Requires Communication to a ird Par ty

ere is a distinc tion between publication and simply creating or uttering

defamatory expression. Publication requires an act on the part of the defend-

ant which communicates the def amatory expression to a third party.

McNichol v. Grandy, [] S.C.R. , where Anglin C.J.C. states at :

e material part of the cause of action in dispute is not the uttering, but

the publication, of the language used (Hebditch v. MacIlwaince [] 

Q.B. , at , , , O’Keefe v. Walsh []  Ir. R. , at ).

Newson (Chief Provincial Firearms Ocer for B .C.) v. Kexco Publishing Co.

(),  B.C.L.R. (d)  per Lambert J.A . at para.  (C.A.):

Cyberlibel: Information Warfare in the st Century?

But publication for the pur poses of libel means commun ication, not

creation of the text for the purp oses of printing.

Pullman v. Hill & Co., []  Q.B.  per Lord Esher M.R. at :

What is the meaning of ‘publication’? e ma king k nown the de-

famatory matter aer it has been wr itten to some person other th an

the person of whom it is written.

) Each Publication is a Sepa rate Tort

Every publication of a libel is a separate tort and each re-publisher is answer-

able to the plainti in d amages for his own act of publication.

King v. Lewis & Others, [] E.W.H.C.  at para. 

Basse v. Toronto Star Newspaper Ltd. (),  O.R. (d) , per Montgomery

J., at  citing Clement Gatley a nd Philip Simon Coleman Lew is, Gatley on

Libel and Slander t h ed., (London: Sweet & Maxwell, ) para s.  and



Berezovsky v. Michaels , [] U.K.H.L.  at para s. –, per Steyn L.J.

) When and Where does Publication Occur?

Publication occu rs where the defamatory words are published in t he sense

of being heard, read, or downloaded. See Dow Jones & Co. Inc. v. Gutnick,

[] HCA  at paras. –, Gleeson. C.J., Gummow and Hayne J.J.:

e tort of de famation, at lea st as understoo d in Australia, focuses upon

publications causing damage to reputation. It is a tort of st rict liability, in

the sense th at a defendant may be liable even though no injur y to reputation

was intended and the defendant acted with reasonable care. Yet a publica-

tion m ade in the ordinar y course of a business such as that of bookseller

or news vendor, which the defendant shows to have been made in circu m-

stances where t he defendant did not know or suspec t and, using reasonable

diligence, would not have known or suspected was defamatory, will be held

not to amount to publication of a libel. ere is, nonetheles s, obvious force

in pointi ng to the need for the publi sher to be able to identify, in advance,

by what law of defamation the publication may be judged. But it is a tor t

concerned with damage to reputation and it is that damage which founds the

cause of ac tion. Perhaps, as Pollock said in , the law went “wrong from

the beginni ng in making the da mage and not the insult the cause of act ion”

for slander but it is now too late to deny that dama ge by publication i s the

focus of the law. “It is the public ation, not the composition of a libel, which is

the actionable wrong.” [Emphasis added.]

Chapter : Publication and Hyperlinks

Harm to reputation is d one when a defamator y publication is comp re-

hended by the reader, the listener, or the observer. Until then, no harm is done

by it. i s being so it would be wrong to treat publication as if it were a uni-

lateral act on the part of th e publisher alone. It is not. It is a bilateral ac t — in

which the publisher makes it available and a third party has it available for his

or her comprehension [emphasis added].

e bilateral nature of publication underpins the long-established com-

mon law rule that every communicat ion of defamatory matter founds a sep-

arate cause of action. at rule has found reection from time to time in

various ways in State legislat ion and it would be a large step now to depart

from it. [Footnotes omitted.]

In the same case, see Callinan J. at para. : “e most important event so

far as defamation is concerned i s the iniction of the damage, and that occurs

at the place (or the places) where the defamation is comprehended” [emphasis

added].See a lso Imagis Technologies v. Red Herring Communications Inc.,

 BCSC  at para. .

In British Columbia, the Court i n Imagis Technologies v. Red Herring

Communications Inc.,  BCSC  found at paras. –:

e cause of action on which Imagis sues arose in British Columbia. “Red Her-

ring” was distributed and sold in British Columbia. e allegedly defamatory

statements therein were repeated and republished by the Vancouver Sun news-

paper, a Vancouver publication know n as Stockwatch, and by the National

Post, another Canadian newspaper circulated in British Columbia. e fact

of publication in Brit ish Columbia means that if the published statements were

defamatory, there is a cause of action on which to proceed in British Columbia,

notwithstanding th at separate causes of action may have arisen in othe r juris-

dictions by virtu e of publication in those jurisdictions [emphasis added].

If the statements were defa matory, Imagis may have sustained loss or

damage i n British Columbia, a factor that favours an action being pursued

in t his court. e evidence on this application ind icates that Imagis has a

reputation with customers as wel l as regulatory and nancia l institutions in

the province. While it may also have a reputation with cu stomers and nan-

cial or reg ulatory institutions in other jurisdict ions, there is no ev idence to

suggest th at such other reputations are disproportionately more signicant

than its reputation in Briti sh Columbia.

e fact of publication in British Columbi a and the claim that Imagis suf-

fered damage here favour British C olumbia as the forum conveniens [e mpha-

sis added].