Law Times

Law timeS • September 19, 2011 FOCUS PAGE 11 ronto lawyer. "We're sitting on a hotbed of litiga- tion when it comes to the intersection of social media and defamation law," says Michael Smith of Borden Ladner Gervais LLP's Toronto offi ce. Th ere's no question that the informa- tion age has expanded the scope of op- portunity for defamation. "When you combine ease of access, the eff ortlessness involved in republishing by hyperlink or otherwise, and the tendency people have shown to let their guard down online, widespread dissemination is more of a re- ality than ever," says Paul Schabas of Blake Cassels & Graydon LLP's Toronto offi ce. But while the Internet has been a reality since the mid-1990s and social media since the turn of the century, awareness of rights related to these phe- nomena hasn't kept pace. "Some recent high-profi le incidents, like the Courtney Love case, have accel- erated rights awareness, but because defa- mation cases tend to settle quickly, there isn't as much attention focused on them as there otherwise might be," Smith says. On the other hand, big business has been taking a serious interest in online defamation of late. "Commercial interests are frequently the victims of online and social media defamation and increasingly they're thinking about the need to control the types of egregious comments that appear," Smith says. "It won't be long Does hyperlinking constitute publication? T BY JULIUS MELNITZER For Law Times he advent of social networking sites has the potential to spark a host of new lawsuits, says a To- before that thinking will translate into action in the form of lawsuits." Indeed, traditional defamation law can be interpreted as imposing liability on employers as publishers in addition to their vicarious responsibility for the defamatory acts of employees. "Employers are good targets because they frequently have deep pockets," Smith notes. Unfortunately, the tendency toward settlement has left the jurisprudence wanting and full of holes for well-rea- soned judgments to fi ll. "Th ere are so many grey areas in the law," says Smith. "Basic issues like who is the publisher, to what extent are em- ployers who simply supply the comput- ers or the infrastructure liable for the de- famatory behaviour of their employees, who qualifi es as an innocent publisher, and how far does qualifi ed privilege ex- tend in this space remain unanswered." Hopefully, the Supreme Court of Can- ada is on the verge of answering some of these questions. Th e court currently has the case of Crookes v. Newton on reserve. Th e key issues in the case are whether the creation of a hyperlink in a web site leads to a presumption of publication of the materials found at the linked site and, if it can't be presumed, what circumstances give rise to an inference of it? Crookes got to the Supreme Court af- ter the British Columbia Court of Ap- peal ruled in 2009 that there was no pre- sumption of publication of hyperlinked articles. In other words, there was no presumption that a reader of an Internet source containing hyperlinks also ac- cessed the material found at the hyper- linked target. At the same time, the court decided that the mere act of hyperlink- ing didn't amount to publication. "If it is apparent from the context in which the hyperlink is used that it is being used merely as a bibliographical or similar- ly limited reference to an original source, without in any way actively encouraging or recommending to the readers that they access that source, then, following Carter, I accept that this would not amount to publication," the court concluded. But the court also confi rmed that hy- perlinking "may in some cases amount to publication by the person creating the link." Relevant factors in determining whether publication had occurred would include "the prominence of the hyperlink, any words of invitation or recommenda- tion to the reader associated with the hy- perlink, the nature of the materials which it is suggested may be found at the hyper- link (for example, if the hyperlink obvi- ously refers to a scandalous or obscene publication), the apparent signifi cance of the hyperlink in relation to the article as a whole, and a host of other factors depen- dent on the facts of a particular case." In this case, however, the trial judge had, according to the appeal court, cor- rectly found that the mere fact of hy- perlinking defamatory materials didn't amount to publication. Still, that left open the question of whether publication could be inferred from the evidence. Here, the appeal court found that the evidence was capable of supporting the inference that at least one reader had accessed the hyperlinked mate- rials from the defendant's site. In arriving at that conclusion, the court noted that more than 1,700 individuals had done so. "It seems unlikely that of the 1,788 who chose to access Mr. Newton's ar- ticle on free speech, not one would have chosen to access and read the impugned articles contained at one or more of the hyperlinks," the court concluded. Th e plaintiff , therefore, "had estab- lished publication of the hyperlinked articles to at least one third party." Well before hearing Crookes, howev- er, the Supreme Court had in late 2009 touched on the relationship of defama- tion law to bloggers, yet another Inter- net phenomenon. In enunciating the new defence of "responsible communi- cation" in Grant v. Torstar Corp., the top court made it apparent that the defence could apply to bloggers. "It's just too diffi cult to draw a bright line between a blogger and a journalist," Schabas says. "Th at's why the defence is — strictly speaking — called responsi- ble communication rather than respon- sible journalism." Typical blogging, however, doesn't always involve research or a fair and bal- anced approach to a subject. Th at raises the question of whether defamation laws will apply more or less leniently to certain types of communications. Th at was a key issue in a ruling in the case of Baglow v. Smith by the Superior Court last month. "Th e law will evolve on this issue, and there will certainly be arguments that a diff erent standard should apply because people take bloggers less seriously than they would others," Schabas says. "But that raises the danger of a double stan- dard, and historically the law doesn't go down that road, preferring to deal with that kind of argument as an aspect of damages rather than liability." The best fit for success. Membership in the Canadian Bar Association (CBA) provides more than 37,500 lawyers access to the piece of the puzzle which enables them to excel. The CBA enhances your professional influence by providing the platform for you to participate in legislative and policy solutions in your field. The CBA leadership role helps you keep your edge by accel- erating your professional development through innovative tools and access to accredited professional development programs and industry leaders. The CBA protects your interests and upholds the core values of the legal profession every day in ways that individual lawyers and law firms cannot accomplish alone. We do this by leading the debate on fundamen- tal issues such as solicitor-client privilege, the Rule of Law, access to justice, and an independent judiciary. Join today by visiting www.cba.org. INFLUENCE. LEADERSHIP. PROTECTION. Untitled-1 1 www.lawtimesnews.com 8/16/11 1:02:39 PM

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