Publication and Hyperlinks
| Author | David A. Potts |
| Profession | Barrister, Bar of Ontario |
| Pages | 227-264 |
: 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 Ocer 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 aer 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 reection 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 iniction 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 signicant
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].
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