Defamation is communication about a person/business that tends to hurt their reputation. In the case of internet communications, the publication of defamatory statements happens when the defamatory statement is read or download by one or more recipients other than the person/business being defamed.
Defamatory content on social media can be devastating for businesses and professionals, especially when it is widely shared.
Unfortunately for those who are victim to the defamatory content, when an individual simply shares (i.e. in a tweet, repost, share, email etc.) a defamatory article, this is not itself actionable in defamation. This rule was set out in the Supreme Court of Canada decision Crookes v. Newton, 2011 SCC 47. In Crookes, Mr. Newton, posted an article on a website he owned and operated that contained hyperlinks to other websites, which in turn contained allegedly defamatory material about the plaintiff. The Supreme Court of Canada held that merely referencing the existence and/or location of content by hyperlink, without more, is not publication of content giving rise to a cause of action in defamation.
However, there is an important distinction if the content itself is one’s own publication. In this scenario, assuming liability is found, sharing the defamatory article via a hyperlink is actionable and will attract a higher damage award.
In Pineau v. KMI Publishing and Events Ltd., 2021 BCSC 1952, the Supreme Court found the defendants liable after publishing a defamatory article referencing the plaintiff. The trial judge awarded general damages of $60,000. On appeal, the Court of Appeal (Pineau v. KMI Publishing and Events Ltd., 2022 BCCA 1952) found that the actions of the defendants (i.e. sharing one’s own defamatory publication in a tweet, repost, share, email etc.) were relevant to damages.
The B.C. Court of Appeal clarified that a defendant’s actions in increasing circulation of the defamatory article should be considered when assessing damages:
[70] There is nothing in Crookes to suggest that a court’s analysis of the mode and extent of publication must exempt from consideration any publication of a hyperlink to defamatory material. The rationales articulated in Crookes for exempting hyperlinks from the publication rule have limited application in the context of an assessment of damages. The issue here is not whether a party will be held liable for merely posting a hyperlink to defamatory material they did not create, but rather the quantum of damages that must be paid by the original author of a defamatory publication. The circulation of a defamatory publication to a broader audience, even by way of a hyperlink, may add to the injury to the plaintiff’s reputation, and therefore increase the award of general damages.
Ultimately, the Court of Appeal doubled the general damages awarded made by the trial judge to $120,000. If you are concerned about defamatory content that has been posted online about you or your business, you should obtain legal advice specific to your situation.
