The recent decision of the Supreme Court of British Columbia in Weaver v. Corcoran, 2015 BCSC 165 makes noteworthy and novel findings as pertains to online defamation and remedies for defamation.
The case primarily involves a claim for defamation in respect of four articles published in a national Canadian daily newspaper. The Court found that the articles were defamatory of the plaintiff, Dr. Andrew Weaver, who was, at the time of the articles, a professor at the University of Victoria. The judge found, in particular, that a reader of the articles would infer, among other things, that Dr. Weaver had been deceitful to the public and had attempted to distract the public from his academic failings in his research on climate change.
The judge found that the defence of fair comment was not available because the defendants were not able to prove the facts underlying the fair comment defence. She awarded the plaintiff Can$50,000 in damages.
While the decision covers substantial ground, two aspects of the decision stand out in particular.
The first is the court’s finding that the newspaper could not be liable for postings published by readers in connection with the online versions of the articles. This issue arose because in addition to suing over the articles, Dr. Weaver had sued over related reader comments, which the court found attacked his character in a “vitriolic manner”.
After considering the Supreme Court of Canada decision in Crookes v. Newton (which stands for the proposition that hyperlinking does not constitute publication of the hyperlinked material), as well as the line of English cases considering ISP liability (Godfrey v. Demon Internet Ltd; Bunt v. Tilley; Tamiz v. Google) the court stated:
Until awareness occurs, whether by internal review or specific complaints that are brought to the attention of the National Post or its columnists, the National Post can be considered to be in a passive instrumental role in the dissemination of the reader postings. It has taken no deliberate action amounting to approval or adoption of the contents of the reader posts. Once the offensive comments were brought to the attention of the defendants, however if immediate action is not taken to deal with these comments, the defendants would be considered to be publishers as at that date. 
This ruling was premised in part on the court’s factual finding that the newspaper’s website received so many hits that it would not be possible to pre-vet reader comments. It is not clear from the reasons why the court focused on web traffic rather than on the seemingly more relevant number of reader postings. Be that as it may, the finding raises interesting questions for future cases:
- What if the publication received less traffic, such that it was possible to review reader postings? In such circumstances, would the newspaper then be assumed to be a publisher and thus liable for all postings?
- What about a publication that does as a matter of practice pre-vet reader comments? Does this practice create potential liability where none would otherwise exist?
The decision does not address these questions, which will be of interest to newspapers with less trafficked websites (or less reader postings) and to newspapers that routinely pre-vet reader comments.
Another noteworthy and perhaps troubling aspect of the decision is the court’s order that the defendants remove the impugned articles from any electronic databases and publish a retraction of the articles in the hardcopy newspaper and on the Internet.
While there appears to be no Canadian precedent stating that judges cannot order that defamatory articles be removed from the Internet, it is not common practice. Ordering that a newspaper publish a retraction is not only uncommon, but runs against a line prior Canadian decisions, which have stated clearly that “[T]he court cannot order a retraction or apology in defamation actions” (see e.g.: Hunger Project v. Council on Mind Abuse (C.O.M.A.) Inc, 1995 CanLII 7390 (ON SC)). Those authorities are not cited in the reasons.
There is a question, not addressed in these reasons, as to whether ordering materials removed from the Internet and requiring publishers to issue apologies is compatible with the constitutional protections afforded to freedom of expression in Canada. This is a point that will necessarily be tackled head on in future cases.
Ryder Gilliland is a litigation partner practicing out of the Toronto office of Blake, Cassels & Graydon LLP.