Respondent Jon
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S.C.C. File No. 33412 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA) BETWEEN: WAYNE CROOKES and WEST COAST TITLE SEARCH LTD. APPELLANTS (APPELLANTS) AND: JON NEWTON RESPONDENT (RESPONDENT) RESPONDENT'S FACTUM JON NEWTON, RESPONDENT Rule 36 of the Rules of the Supreme Court of Canada COUNSEL FOR THE RESPONDENT: AGENT FOR THE RESPONDENT: OWEN BIRD LAW CORPORATION 2900 - 595 Burrard Street P.O. Box 49130, Three Bentall Centre Vancouver, BC V7X 1J5 GOWLING LAFLEUR HENDERSON LLP 2600 - 160 Elgin Street P.O. Box 466, Stn "D" Ottawa, ON KIP 1C3 Daniel W. Burnett Henry S. Brown, Q.C. Tel: 604-691-7506 Fax: 604-632-4433 Email: dhurnett@owenbird.com Tel: 613-233-1781 Fax: 613-788-3433 Email: henry.brown@gowlings.com - ii COUNSEL FOR THE APPELLANTS: AGENT FOR THE APPELLANTS: STEWART, AULINGER & CO. 1200 - 805 West Broadway Vancouver, B.C. V5Z 1K1 LANG MICHENER LLP Suite 300,50 O'Connor Street Ottawa, Ontario KIP 6L2 Robert A. Kasting Jeffrey W. Beedell Tel.: 604-879-0291 Fax: 604-874-5551 Email: bkasting@smartt.com Tel.: 613-232-7171 Fax: 613-231-3191 E-mail: jbeedell@langmichener.com CO-COUNSEL FOR THE APPELLANTS: TAYLOR JORDAN CHAFETZ 1010 - 777 Homby Street Vancouver, BC V6Z IS4 Donald J. Jordan, Q.C. Tel.: 604-683-2223 Fax: 604-683-2798 Email: djordan@tjclaw.com COUNSEL FOR INTERVENOR, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION: AGENT FOR INTERVENOR, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION: BLAKE, CASSELS, GRAYDON LLP Suite 2600, Three Bentall Centre 595 Burrard Street, P.O. Box 49314 Vancouver, BC V7X 1L3 BLAKES, CASSELS & GRAYDON LLP World Exchange Tower 20&Floor, 45 O'Connor Street Ottawa, ON KIP 1A4 Paul Schabas/Roy W. MilledJon Goheen Nancy Brooks Tel: 604-631-3300 Fax: 604-631-3309 Email: roy.millen@blakes.com Tel: 613-788-2200 Fax: 613-788-2247 Email: nancy.brooks@blakes.com COUNSEL FOR INTERVENOR, CANADIAN CIVIL LIBERTIES ASSOCIATION: AGENT FOR INTERVENOR, CANADIAN CIVIL LIBERTIES ASSOCIATION: TORYS LLP 79 Wellington Street West, Suite 300 Box 270, TD Centre Toronto. ON M5K 1N2 GOWLING LAFLEUR HENDERSON LLP 2600 - 160 Elgin Street P.O. Box 466, Stn " D Ottawa, ON KIP 1C3 Henry S. Brown, Q. C. Wendy Matheson Tel: 416-865-8133 Email: wmatheson@torys.com Andrew Bernstein Tel: 41 6-865-7678 Email: abernstein@torys.com Tel: 613-233-1781 Fax: 613-788-3433 Email: henry.brown@gowlings.com COUNSEL FOR INTERVENOR, SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC: AGENT FOR INTERVENOR, SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC: GOWLING LAFLEUR HENDERSON LLP GOWLING LAFLEUR HENDERSON LLP 2600 - 160 Elgin Street P.O. Box 466, Stn " D Ottawa, ON KIP 1C3 2600 - 160 Elgin Street P.O. Box 466, Stn "D" Ottawa, ON KIP 1C3 Richard G. Deardoflendy J. Wagner Henry S. Brown, Q.C. Tel: 613-233-1781 Fax: 613-563-9869 Tel: 613-233-1781 Fax: 613-788-3433 Email: henry.brown@gowlings.com COUNSEL FOR INTERVENOR, NETCOALITION: AGENT FOR INTERVENOR, NETCOALITION: LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP Suite 2600 - 130 Adelaide Street West Toronto, ON M5H 3P5 CAVANAGH WILLIAMS CONWAY BAXTER LLP Suite 401 - 1111 Prince of Wales Drive Ottawa, ON K2C 3T2 William C. McDowell Colin S. Baxter Tel: 416-865-2949 Fax: 416-865-2850 Email: wmcdowell@litigate.com Tel: 613-780-2012 Fax: 613-569-8668 Email: cbaxter@cwcb-law.com Marguerite Ethier Tel: 416-865-2979 Fax: 416-865-2841 Email: methier@litigate.com Naomi D. Loewith Tel: 416-865-2971 Fax: 416-865-2847 Email: nloewith@litigate.com COUNSEL FOR INTERVENORS, Canadian Newspaper Association, Ad IdemICanadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, The Writers' Union of Canada, Professional Writers Association of Canada, Pen Canada and Canadian Publishers' Council: AGENT FOR INTERVENORS, Canadian Newspaper Association, Ad IdendCanadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, The Writers' Union of Canada, Professional Writers Association of Canada, Pen Canada and Canadian Publishers' Council: PARRIS, VAUGHAN, WILLS & MURPHY LLP 2500 - 700 West Georgia Street Vancouver. BC V7Y 1B3 GOWLING LAPLEUR HENDERSON LLP 2600 - 160 Elgin Street P.O. Box 466, Stn " D Ottawa, ON KIP 1C3 Robert S. Anderson Q.C./Ludmila B. Herbst Henry S. Brown, Q. C. Tel: 604-684-9151 Fax: 604-661-9349 Email: randerson@farris.com Tel: 613-233-1781 Fax: 613-788-3433 Email: henry.brown@gowlings.com TABLE OF CONTENTS .............................................................................................. 1 Part I1 . ISSUES ON APPEAL .................................................................................................... 5 Part I11 . ARGUMENT................................................................................................................. 6 Part I .STATEMENT OF FACTS Introduction .......................................................................................................................... 6 Decisions Below and Standard of Review ........................................................................... 8 Issue 1: The Court Below Did Not Err in Rejecting a Presumption or . . Inference of Publication ........................................................................................... 9 Issue 2: Mere Hyperlinking is not Publication ................................................................. 13 Searching for Comparables .................................................................................... 16 A Link Is Not An Endorsement ............................................................................. 20 Demon Internet and Notice .................................................................................... 21 Hyperlinking as a Deliberate Act ........................................................................... 23 ... Responsibility ........................................................................................................ 24 Olivier v. SARL Bloobox ........................................................................................ 24 Conclusion .Expression and Reputation ............................................................... 25 ............................................................ 27 Part V .ORDER SOUGHT ........................................................................................................ 27 Part VI . TABLE OF AUTHORITIES ..................................................................................... 28 Part VII . ENACTMENTS RELIED ON ................................................................................ 30 Part IV .ORDER SOUGHT CONCERNING COSTS PART I STATEMENT OF FACTS 1. This appeal arises from a defamation action over a July 18, 2006 internet publication by the Respondent, Jon Newton. The distinguishing feature of the action is that the publication is not alleged to contain a single defamatory word. Instead, it is alleged that the Respondent is liable for statement on other websites to which the Respondent's publication hyperlinked. The Respondent did not repeat any of the allegedly defamatory statements in his own publication. Publication in issue [Appellant's Appeal Record ("A.A.R.") pp. 125-1271 Statement of Claim [A.A.R. Paras. 49-54, AAR pp, 43-49]; 2. The Respondent had no involvement in the two websites to which he hyperlinked, one called "openpolitics.ca" regarding a wide range of Green Party issues, and one called "usgovernetics.com" which made some reference to the Appellant Wayne Crookes. The Respondent had no interest in Green Party issues and had not ever heard of the Appellant until he read about a lawsuit that raised internet free speech issues, which did interest the Respondent. B.C. Supreme Court Reasons paras. 6-9 [A.A.R. p. 31 Newton Affidavit #I, paras. 3-7 [A.A.R. p. 1611 3. The lawsuit that caught the Respondent's interest had been filed by the Appellant in May of 2006. It was a defamation action over postings appearing on www.openpolitics.ca, naming four alleged authors and website operators as defendants. 4. One defendant in that action, Warren DeSimone, successfully brought a dismissal motion, which was upheld by the B.C. Court of Appeal, on the basis that there was no evidence he was involved in any of the alleged publications. Crookes v. Pilling et al, 2007 BCSC 630, [2007] B.C.J. No. 923 (QL); aff'd, Crookes v. De Simone, 2007 BCCA 515 [R.A. Tabs 5,8] 5. In March of 2007, the Appellant commenced a second action, suing a further nine defendants over substantially the same alleged defamation on openpolitics.ca and other websites. Those defendants included individuals alleged to be involved with the openpolitics.ca site and other sites, as well as Yahoo! and MySpace. 6. Yahoo! brought a successful motion for dismissal of the action against it, upheld by the British Columbia Court of Appeal, on the basis that the Appellant had failed to allege or prove publication to any person, with the courts refusing to accept an argument by the Appellant for a presumption of publication on the internet. Crookes v. Yahoo! 2008 BCCA 165; aff'd 2007 BCSC 1325 7. In April and May of 2007, the Appellant commenced three further defamation actions. These included the action giving rise to this appeal against this Respondent and the Wikimedia Foundation; another action against Professor Michael Geist over an article on the professor's internet law website and against Chris Tindal for an internet article entitled "The Silliness of Suing a Wiki"; and a final action against Google and several "John Doe" defendants. 8. None of the Appellant's five actions against over 18 defendants have ever gone to trial, and the Appellant does not have any of them scheduled for trial, despite the passage of well over four years since his series of actions began. 9. The Respondent's article in issue on this appeal was entitled "Free Speech in Canada" and referred to the lawsuit against the alleged authors and operators of openpolitics.ca. The article was ten paragraphs long and contained seven hyperlinks to various people and websites it mentioned, including the two hyperlinks which are the sole basis of the defamation action against the Respondent. The Respondent's article did not comment on the Appellant, nor did it endorse or even direct readers to any particular statements on the hyperlinked sites. Newton Affidavit #1, paras. 3-7 [A.A.R. p. 161 B.C. Supreme Court Reasons paras. 6-9 [A.A.R. p. 31 10. The Respondent's evidence was that hyperlinks are widely used by himself and others on the internet as the equivalent of a footnote or bibliographical reference, and that if he were liable for hyperlinks, he would be reluctant to hyperlink as that would require monitoring of numerous large and ever-changing linked sites over which he has no control. Newton Affidavit #1, paras. 8-9 [A.A.R. p. 1611 11. The Respondent served a motion dated May 28, 2008 for a "summary trial" available to determine an action or an issue under the British Columbia Rules of Court. The Respondent invited the court to dismiss the action on either of two separate grounds. The first ground was that there was no evidence anyone had followed the hyperlinks on the Respondent's intemet article and read the allegedly defamatory words on the linked sites. The second ground was that a mere hyperlink is not in any event publication within the law of defamation. The summary trial occurred on August 28, 2008 before Kelleher, J. B.C. Supreme Court Reasons, AAR p. 2 12. The Appellant's Appeal Record before this Court contains all of the evidence filed by both sides on the summary trial motion. Despite the passage of over two years between the Appellant's knowledge of the Respondent's publication and the summary trial, and despite the passage of three months from the delivery of the motion until the date it was heard, the Appellant has never tendered any evidence that even one person had read the allegedly defamatory words or that anyone had followed the hyperlinks in the Respondent's article. 13. The Appellant relied entirely upon his argument that publication should be presumed or inferred. He relied on evidence provided by the Respondent that there had been 1,788 "hits" on the Respondent's article in the 18 month period after publication of the article, although it was unknown how many of those hits were humans as opposed to intemet "robots" used by search engines and other data gatherers, or whether any of them followed any of the hyperlinks. Newton Affidavit #2, Ex. B, answer 19 [A.A.R. p. 187 14. However, the Appellant's evidence of the presence of the allegedly defamatory words on the linked sites did not span the 18 months; in fact his only evidence of what words appeared on the relevant openpolitics.ca articles and the usgovemetics.com article was for a single day of each article, which ranged between June 2005 (when the Respondent's article did not even exist) and October of 2006. Crookes Affidavit #1 paras 5 & 6 [A.A.R. pp. 56-59] Crookes Affidavit #1 exhibits A through M [A.A.R. pp. 66-1231 15. This was despite the fact that on his own evidence the articles themselves changed frequently. In the case of usgovemetics.com was removed by June 20, 2007, although the Appellant does not say how long before that the article was removed. For the openpolics.ca articles, the Appellant's evidence shows frequent changes in the articles, but failed to include any history of the articles beyond the dates of printout, meaning that the state of the web articles on openpolitics.ca for most of the 18 months when the "hits" were measured is unknown. Removal of usgovernetics.com article [A.A.R. pp. 64 (para 32), 128, 1411 Frequent changes to openpolitics.ca articles [A.A.R. pp. 69,77,80,93, 102, 1041 Crookes Affidavit #2, Ex. B, Answer #19 [A.A.R. p. 1871 16. The summary trial proceeded on the basis of the hyperlinkiuglpublication issue alone. Newton has other defences, namely qualified privilege and fair comment, which could not properly be dealt with on the summary trial. If the court had ruled against the Respondent, it would not have disposed of the case but instead the matter would have been remitted to the trial list. 17. Kelleher, J. in a reserved decision agreed with the Respondent on both issues, firstly that there was no proof of publication (refusing to accept an argued presumption of publication) and secondly, that mere hyperlinking does not constitute publication in law. B.C. Supreme Court Reasons, paras. 20 and 31-34 [A.A.R. pp. 12-17] 18. The Appellant appealed to the B.C. Court of Appeal, where the appeal was dismissed. The majority agreed with the summary trial judge on both issues, and rejected a further argument that publication via the hyperlink could be inferred from the number of hits on the Respondent's article. B.C. Court of Appeal Reasons, paras. 78-93 [A.A.R. pp. 28-31] PART I1 ISSUES ON APPEAL 19. Did the British Columbia Court of Appeal err in holding that in the circumstances, it was not appropriate to presume or infer publication? 20. Did the British Columbia Court of Appeal err in holding that a hyperlink does not constitute publication of the linked websites for the purposes of defamation liability? PART 111 ARGUMENT 21. The Internet dates to the 1960's, with its key transmission protocols established in 1974. By 1988, there were a modest 80,000 hosts. However, after the 1991 development of hyper-text mark-up language (html) led by Sir Tim Berners-Lee, the World Wide Web was born and the Internet exploded in size and influence. Today it is everywhere -- workplace, home, mobile devices, public libraries, schools, - to the point that the lack of access in the developing world is a significant concern. It has become arguably the most important medium of global communication, information and knowledge. Parent and Cruikshank, "7'he Growth Of the Internet and Knowledge Networks" (2009) [Respondent's Authorities ("R.A.") Tab 251 22. This appeal challenges the law to adapt to a form of communication that would have been unimaginable when the common law of defamation was fundamentally shaped in the 1600's and 1700's. The law of defamation must evolve not only in accordance with Charter values, but through changing times, changing realities and emerging technologies of expression. 23. This Court's decisions on defamation in recent years have emphasized the importance of protecting not only reputations but also "freewheeling debate". The internet has enabled nearly all citizens to engage in that debate, and with each other, in a tme marketplace of ideas. WICRadio v. Simpson, [2008] 2 S.C.R. 420 [R.A. Tab 211 Grant v. Torstar Corp., 2009 SCC 61 [Appellant's Authorities ("A.A.") Tab 71 24. The hyperlink plays a central role in the free flow of information. An unheard-of blogger with something important to say may rise to national prominence when a major news site picks up and links to their site. An individual far from any research facility can obtain information including scholarly articles through the list of links generated by a search engine. 25. The importance of the freedom to hyperlink has its origin in the very development of the web. Bemers-Lee wrote memoranda on the subject in 1997, which remain today published by the World Wide Web Consortium in charge of web standards. He said: "The ability to refer to a document (or a person or any thing else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else. Users and information providers and lawyers have to share this convention. If they do not, people will be frightened to make links for fear of legal implications. It is difficult to emphasize how important these issues are for society. The first amendment to the Constitution of the United States, for example, addresses the right to speak. The right to make reference to something is inherent in that right. On the web, to make reference without making a link is possible but ineffective like speaking but with a paper bag over your head." Sir Tim Berners-Lee, Links and Law: Myths (1997) http://www.w3.org/DesignIssues/LinkMyths.html [R.A. Tab 241 Decisions Below and Standard of Review 26. The decisions at the British Columbia Supreme Court and British Columbia Court of Appeal were that on two different bases, the Appellant's claim should be dismissed. First, the failure to prove publication was fatal to the Appellant's claim, and a presumption or inference of publication was rejected. Second, even if there had been evidence someone followed the hyperlink, it was held at both levels that the hyperlinks did not create liability, and the words of the Respondent's article were not endorsements of the allegedly defamatory statements. 27. On this appeal the Appellant must overcome both of these holdings below to succeed. 28. At one level, both issues are points of legal principal upon which this Court's guidance will assist the development and clarity of defamation law as it applies on the Internet. However, it must not be forgotten that the decisions below involved important assessments of the evidence, and this Court's repeated emphasis upon deference to triers of fact plays an important role in this appeal. Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at para. 36-39 [R.A. Tab 121 29. Specifically, both the summary trial judge and majority of the Court of Appeal held that the evidence tendered by the Appellant was not sufficient to infer based on the number of "hits" on the original article that anyone actually "clicked" on the hyperlink and read the allegedly defamatory words. Secondly, both the summary trial judge and majority on appeal, examining the words used by the Respondent in his internet publication, concluded that the language used did not amount to an endorsement of any statement on the linked websites. The Court of Appeal majority mled that the words in the Respondent's article "fell far short of a statement of approbation or adoption." B.C.S.C. Reasons paras. 20 & 32-34 [A.A.R. pp. 4 & 61 B.C.C.A. Reasons, paras. 89 & 92 [A.A.R. 30 & 311 30. These findings occurred in a British Columbia procedure called a summary trial (Rule 18A). It differs from a motion on a point of law and even from summary judgment, as it is a trial of an action or an issue, at which the ordinary evidentiary onus at trial applies, and where the judge can make findings even in the face of conflicting evidence if he or she considers it just to do so. Miura v. Miura (1992), 66 B.C.L.R. (2d) 345 (C.A.) at 352 "There is no reason why the onus should be reversed simply because the defendant moves for judgment under R. 18A, thus requiring the plaintiff to prove her case in a summary trial proceeding." Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. [I9891 B.C.J. No 1003 (C.A.) [R.A. Tab 131 at para 215: "The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus of proof he must give judgment according to law unless he has the opinion that it will be unjust to do so." 31. At the summary trial, the evidence was that the article by Newton with the hyperlinks to allegedly offending third party wehsites was seen by Crookes over two years before the summary trial. The summary trial motion was served three months before the hearing and the hearing date was set by agreement. Still the plaintiff came to the summary trial with no evidence to discharge his most basic onus, to prove publication. Issue 1: The Court Below Did Not Err in Rejecting a Presumption or Inference of Publication 32. Publication occurs when a person (other than the plaintiff) reads the allegedly defamatory words. The Australian High Court has emphasized that publication is a two part, or "bilateral" concept. The claimant must not only prove a sending by the defendant of something defamatory - there must be proof someone read the item or there is no publication and no cause of action. The tort occurs when and where the defamation is read. Dow Jones v. Gutnick, [2002] HCA 56; (2002) 210 CLR 575 [R.A. Tab 101 Crookes v. Holloway 2007 BCSC 1325, para. 22 - 26 (aff'd, 2008 BCCA 165) [R.A. Tabs 5,6] 33. Instead of proving that anyone followed the hyperlink and read the allegedly defamatory words, the Appellant chose to argue for a presumption or inference that readers followed the hyperlink to the defamatory words on the third party wehsites. The evidence he relied upon for that argument was that, in an 18 month span between the Respondent writing his article and the Respondent answering certain interrogatory questions, there had been 1,788 "hits" on the Respondent's article. 34. However, the "hits" give no indication of whether hyperlinks were followed, whether the hit was by a person or internet "robot", or whether, in the 18 month period during which the hits occurred, the allegedly defamatory words remained on the openpolitics.ca or usgovemetics.com websites. The Appellant's own evidence cited in Part I confirmed that the articles changed from time to time, and at least one was taken down completely within the 18 month period. 35. The Courts below rejected the argument that it should be presumed or inferred that readers followed the hyperlink to the allegedly defamatory words. It is submitted that was entirely sensible. A limited interest website does not equate to the evening news or a daily newspaper. Moreover, reading a web article is an important step short of following and reading another website referenced in a hyperlink. B.C.C.A. Reasons para. 92 [A.A.R. p. 311 36. There was no evidence of behaviour on the Internet generally or of readers of the Respondent's article in particular. The Appellant did not reveal what if any efforts were made to discover whether computer server records would reveal if anyone followed the hyperlinks. The fact that over two years passed without the Appellant becoming aware of a single publication adds considerable doubt to the Appellant's unproven assertion of publication. 37. The Appellant relies on the decision of this Court in Gaskin v. Retail Credit Co. et a1 [I9651 S.C.R. 297 [A.A. Tab 51 where credit reports were prepared and sent out to clients without evidence of receipt. The trial judge had taken the case away from the jury and directed a verdict for the defence on the failure by the plaintiff to prove publication. The majority in this Court endorsed a passage from Halsbury, "...if there is any evidence of publication by [the defendant] it must be left to the jury.. ." (p. 299, see also page 301). 38. Gaskin does not stand for a presumption or inference of publication on those facts; it merely decides that the judge should not have taken the case from the jury. In contrast, in the present case, there was a summary trial and the Appellant chose to have his case on publication stand or fall on the evidence presented. 39. The Appellant had previously attempted to argue for the same presumption and failed. Yahoo! (also sued in another proceeding by the same plaintiff) successfully moved to have the plaintiffs claim against it struck. One of the key issues in that case was whether the plaintiff could rely on a presumption of publication in an Internet context. The B.C. Court of Appeal upheld the ruling of the motions judge, summarizing it as follows: Mr. Crookes also contends the judge erred in holding Yahoo "[71 had, without tendering any evidence in support, demonstrated there was no publication in British Columbia. But in my view, the judge reached no such conclusion. She observed Mr. Crookes pleaded case was deficient and no evidence had been adduced on the application that the statements had been read in this province, or that would permit an inference to that effect to be drawn. She held there was no basis to find the proceeding concerned a tort committed in British Columbia such that the court was without jurisdiction." Crookes v. Yahoo! 2008 BCCA 165 [R.A. Tab 61 40. The English courts have rejected the proposition that for words on the Internet, there is any presumption that the words were actually read. The burden is upon the plaintiff. Amoudi v. Brisard et a1 [2006] EWHC 1062 (QB), at paras 36-37 [R.A. Tab 11 Metropolitan International Schools Limited v. Designtechnica Corporation et a1 [2009] EWHC 1765 (QB) at para. 33 [R.A. Tab 191 41. In Amoudi, the claimant sought a presumption that people read an Internet publication. Justice Gray rejected such a presumption and required the claimant to prove that the publication was read. He referred to his prior decision in Loutchansb refusing to infer publication of an archive article on the Times website despite evidence of 12.5 million visitors per month (para 34). At para. 36-37 he also referred to Dow Jones v. Jameel [2005] EWCA Civ 75 [R.A. Tab 15 - a different Jameel decision from the one cited by the Appellant] as follows: "I think that further assistance on the question [of whether there should be a presumption that words on the Internet were read] can be derived from Jameel v. Dow Jones Inc. ... The claimant in that case invited the inference to be drawn that a substantial number of readers of the main article would have read the page to which the hyperlink led. The defendant publishers adduced evidence that only five subscribers within the jurisdiction had been able to access the alleged libel via the hyperlink. Of those five, three were members of the claimant's 'camp'. The Court of Appeal stuck out the claim as an abuse of process on the ground that the extent of the publication within the jurisdiction was minimal and did not amount to a real and substantial tort. It appears to me to be of some significance that there was no suggestion made on behalf of the claimant in the context of that case that he could rely on any presumption of publication. The fact the Court of Appeal struck out the claim provides some support for the view that an argument in favour of the existence of a presumption of publication would not have found favour with the court. For the above reasons I am unable to accept that under English law a claimant in a libel action on an Internet publication is entitled to rely on a presumption of law that there has been substantial publication.. ." 42. In the case at bar, despite all the authorities above, the Appellant is not only asking for a presumption or inference that the allegedly defamatory articles were read, but is asking the Court to take a giant further step and presume or infer that the readers followed the Respondent's hyperlink to get to the linked sites and then, within those sites, found and read the allegedly defamatory words. 43. It should be pointed out that the English decisions since Jameel have required "substantial" publication to be proven. Jameel dealt with a Wall Street Journal On-line article which hyperlinked to a "Golden Chain" list naming alleged donors to Al-Qaeda. Although it was alleged there were between 5000 and 10,000 subscribers to the on-line publication in the jurisdiction, the defence evidence was that there was only 5 people in the jurisdiction who followed the hyperlink, three of whom were supporters of the plaintiff. Jameel v. Dow Jones [2005] EWCA Civ. 75 paras. 11-15 [R.A. Tab 151 44. The plaintiff in Jameel relied on the longstanding rule in Duke of Brunswick v. Harmer (1849) 14 QB 185, where the plaintiff Duke sent an agent to obtain a back order of the newspaper, and this was held to create a fresh cause of action. The Court of Appeal decided the time had come to depart from the Duke of Brunswick approach. The Court said at para. 56: "We do not believe that Brunswick v. Harmer could today have survived an application to strike out for abuse of process. The Duke himself procured the republication to his agent of an article published many years before for the sole purpose of bringing legal proceedings that would not be met by a plea of limitation. If his agent read the article he is unlikely to have thought the Duke much, if any, the worse for it and, to the extent that he did, the Duke brought this on his own head. He acquired a technical cause of action but we would today condemn the entire exercise as an abuse of process." 45. Applying that approach to the facts before it, the Court of Appeal said at paras 69-71: "If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick. . .. we would dismiss this action as an abuse of process." 46. It is submitted that the "substantial publication" rule does not alter the principles under which the English courts in cases above such as Amoudi have rejected presumptions or inferences of publication on the Internet. It also must be said that it may be time for Canadian law to move past the old Duke of Brunswick approach and embrace a more modem Jameel requirement of substantial publication. The concern in Jameel over actions over technical or trifling publications, fundamental issues of proportionality, and the vast expense to parties and courts in defamation suits are no less valid in Canada. Issue 2: Mere Hyperlinking is not Publication 47. The Respondent is not alleged to have published any defamatory words himself. The Appellant's contention throughout is that by publishing the hyperlinks, the Respondent became a publisher of the words appearing on the hyperlinked sites. This question begins with a close examination of the nature of hyperlinks. 48. In SOCAN, This Court has identified an important distinction between a normal user- activated hyperlink, which must be clicked to take the reader to the third party site, and an embedded or automatic hyperlink, which causes the words, images or other content from the third party site to appear as part of the original site. The majority in this Court held that the former was not a copyright infringement while the latter was. "The Board was also required to consider the potential copyright infringement of "hyperlinks", particularly when the link is automatic. Automatic links employ an embedded code in the Web page that automatically instructs the browser, upon obtaining access to the first site, to download a file from a second site. The user does not need to do anything but visit the initial site before information from the second site is "pulled". A different legal issue may arise where the user must take action, such as to click the mouse button over the hyperlink, in order to obtain access to the information from the second site." SOCAN v. Canadian Association of Internet Providers [2004] S.C.R. 427, 2004 SCC 45, para. 25 [A.A. Tab 121 49. Berners-Lee identified the same distinction and commented on its implications: "Normal hypertext links do not of themselves imply that the document linked to is part of, is endorsed by, or endorses, or has related ownership or distribution terms as the document linked from. However, embedding material by reference (sometimes called an embedding form of hypertext link) causes the embedded material to become a part of the embedding document. " Sir Tim Berners-Lee, Links and Law (1997) http://www.w3.org/DesignIssues/LinkLaw [R.A. Tab 231 50. The present case involves normal user-activated hyperlinks. The majority below pointed out that the Respondent's words did not endorse the linked sites, and indeed the Respondent's article alerted readers to the fact that there was a defamation proceeding over the articles. The Respondent's evidence was that it his practise to routinely hyperlink to references in his articles, as one might use a footnote. Court of Appeal Reasons, para. 89 [A.A.R. p. 301 Crookes Affidavit #I, para. 8 [A.A.R. p. 1611 51. To use a "paper" analogy, an article which contains a quote from another source is different from one which simply refers to the source, for example in a footnote, without quoting it. The reader can choose to seek out the other source. The differences between the latter scenario and a normal hyperlink is merely one of convenience; not one upon which liability should be triggered. 52. The Courts below found the analogy between a normal user-activated hyperlink and a footnote to be apt. The Appellant challenges this analogy at para. 73 of its factum, saying that due to the ease of clicking a hyperlink, the analogy to a footnote would only hold if the footnoted article were stapled to the publication. With respect, that argument misses the distinction between a normal hyperlink and an embedded one, and between making and distributing actual copies and merely referencing the location of a publication. A normal hyperlink involves no copying or distribution of any part of the linked website. 53. An embedded link, as this Court observed in SOCAN, makes the third party content appear automatically as part of a website, effectively republishing it. Therefore, for an embedded link, the "stapled source" comparison may be apropos, but where a normal hyperlink is used as in the case on appeal, the third party content is only read if the reader makes a choice to leave the Respondent's site and go to the third party sites. 54. Following a hyperlink is like picking up and reading a different book. The majority judgment in the B.C. Court of Appeal below makes the point at para. 82: "...there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website." B.C.C.A. Reasons para. 82 [A.A.R. p. 291 55. In a California decision involving Ticketmaster, the court made a similar point: "[Hlyperlinking does not itself involve a violation of the [American] Copyright Act ... since no copying is involved, the consumer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently." Michael Travis, What is the Legal Status of Hyperlinking a n d o r Deep Linking?, 9 Auckland U.L. Rev. 976 (2000-2003), quoting Ticketmaster Corp. v. Tickets.com Inc, 2000 US Dist LEXIS 12897 (C.D. Cal). [R.A. Tab 28, p. 9801 56. The Appellant's argument suggests that the convenience of clicking a hyperlink somehow justifies imposing liability. Yet modem technology makes accessing material more convenient with each passing year. Without a hyperlink, the effort of using short computer commands to copying and paste a non-hyperlinked internet address into a web browser is minimal. Even with no web address, a simple Google search can retrieve an article. 57. The point is that a convenience-based test for liability is a dangerous approach, doomed to create shifting liabilities with each advancement. A principled approach to internet liability is preferable. The approach must bear in mind that a publication only occurs when a message is both posted and read (Gutnick). 58. Unlike many of the internet cases where the defendant is a web host or service provider who cannot deny they are the physical transmitter of the publication, a normal-user activated hyperlink involves no transmission, copying or presentation of the alleged defamation, no control over its content, and no control over whether a reader makes the choice to follow the hyperlink. 59. On the question of who is a publisher of the original defamation, this court said at in Hill v. Church of Scientology [I9951 2 S.C.R. 1130 [R.A. Tab 111 at para. 176. "Thus, both Manning and Scientology published the notice of motion. It is a well-established principle that all persons who are involved in the commission of a joint tort are jointly and severally liable for the damages caused by that tort. If one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel. Both the person who originally utters the defamatory statement, and the individual who expresses agreement with it, are liable for the injury. ..." 60. The present case bears no resemblance to the liability scenarios contained in this passage. Newton was not involved in the creation or approval of the initial articles on the openpolitics.ca site; indeed that defamation, if there was one, was complete before the Respondent was even aware of it. 61. Joint tortfeasors must engage in "concerted action to a common end". Here, the publications on openpolitics.ca and usgovemetics.com were complete before the Respondent had ever heard of the Appellant, let alone published his own article. For a discussion of joint and concurrent tortfeasors, see Reeves v. Arsenault [I9951 PEU No 159 (SC). Searching for Cornparables 62. The Appellant relies upon the 1894 "pointing-at-a-sign" case of Hird v. Wood (1894). 38 S.J. 234 (C.A.) [A.A. Tab 81, where the defendant drew the attention of passers by to a sign by pointing at it. It is a mistake to read Hird as a decision holding a person liable for pointing at a sign, as it merely decided that where there was some evidence of publication, that question should go to the jury. 63. Although the law report dates from an era where the case description was a relatively brief summary and not the actual words of the Court, it reveals that the evidence did not stop at mere pointing. The circumstances were that the plaintiff had obtained an injunction putting two local people out of business and the defendant was part of a group who had "resolved to" use a local event to make their unhappiness with the plaintiff known. The law report of Hird says: ... certain persons, including the defendant, took steps to arouse the " sympathy of the neighbourhood on behalf of [the enjoined parties]; and it appeared to have been resolved to make use of the occasion of a gala ... for raising a subscription for them." 64. The evidence was enough to go to the jury, but we do not know if publication was ultimately found. Hird was held by the B.C. Court of Appeal in Carter to be quite distinguishable from a circumstances where a defendant publishes a website address a newsletter. The Court in Carter also emphasized the element of control over the defamatory statement, which it pointed out was lacking when the allegedly defamatory words were on a third party website. Carter v. B.C. Federation of Foster Parents, 2005 BCCA 396 paras. 10-13 [A.A. Tab 31. 65. There is also a difference between a hyperlink which a reader must choose to follow, which then leads to a multi page web publication and not the specific words alleged to be defamatory, and a person pointing to a sign that requires no clicking, scrolling or hunting. If one's eyes follow a pointing finger to a large brief sign, the defamatory statement is read by the audience without any real intervening choice or effort by a reader as there is with a hyperlink. 66. A more analogous situation to the present case is the radio personality, Walter Winchell, referring on the air to an allegedly defamatory article in Collier's magazine without repeating any defamatory words. It was held by a New York court in that case that the reference by Winchell did not constitute publication by him or his radio station of the magazine contents. MacFadden v. Anthony, 117 N.Y.S.2d 520 (Sup. Ct. 1952) [R.A. Tab 181 also see Klein v. Biben, 296 N.Y. 638 (Ct. App. 1946) [R.A. Tab 171 67. In Carter, The B.C. Court of Appeal faced the question of an Internet web address published in a paper newsletter, and held that the above "magazine" cases were a better comparison. On that basis, the Court ruled that the publication of a website address ("URL") in a newsletter was not publication of the contents of the website. The Court said: In my opinion, the factual situation here is closer to the "[I21 situation found to exist in the New York cases of MacFadden v. Anthony, 117 N.Y.S.2d 520 (Sup. Ct. 1952) and Klein v. Biben, 296 N.Y. 638 (Ct. App. 1946), referred to by the trial judge, where the courts held reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment. Unlike the situation found in the Tacket case, there was here [I31 no element of control by the Federation over the Bopeep Forum and the facts of the instant case are quite distinguishable from the situation found to exist in the Hird case. In Hird, the defendant took active steps to draw the attention of persons to the defamatory placard. I should say that the defendant there was taking active steps to publish to the world the defamatory material contained on the placard. I do not believe the circumstances extant there can be successfully analogized to the instant case. I take note of the fact that this was a reference in a printed newsletter to a website and I would limit the effect of this case to that factual situation. Whether a different result should obtain concerning an Internet website that makes reference to another website I would leave for decision when that factual circumstance arises. In the result, I am not persuaded that the learned trial judge made any error in his assessment of this aspect of the matter and I would dismiss the appeal on this issue concerning the Bopeep Forum." 68. The Court of Appeal in Carter declined to rule on whether a similar publication in electronic internet form would have the same result, given that the case before it involved only a paper newsletter containing an Internet address (known as a URL). However, it is submitted that the reasoning is sound when applied to the Internet. Readers of a newsletter, either online or on paper, who see a reference to a third party website, can go to that website but that does not make the publisher of the web address a publisher of the third party site. 69. Below, the trial judge and all three judges of the B.C. Court of Appeal were unanimous that the principle in Carter applied to a hyperlink. The majority below said at para 83: "I agree with my colleague's conclusion at para. 58: I agree with the trial judge that the reasoning of this Court in Carter supports Mr. Newton's position that the mere fact he hyperlinked to the impugned sites does not make him a publisher of the material found at the hyperlinked sites." 70. Courts have refused in defamation cases to treat linked pages, even within one site, as "one package". In Kernode v. Fairfux Media Publications Pty. Ltd. [2009] NSWSC 1263 [R.A. Tab 161 the Supreme Court of New South Wales held that it was not appropriate to treat a series of linked sites as one package for defamation purposes: "22 A critical consideration in the determination of the present question is the way in which people view material on the Internet. It is useful, in that context, to return to the discussion of the nature of the tort of defamation in the decision of the High Court in Dow Jones v. Gutnick [2002] HCA 56, (2002) 210 CLR 575, particularly in the joint judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) at [25]-[27]. As stated there, the tort of defamation is concerned with damage to reputation, which is done when a defamatory publication is comprehended by the reader, listener or observer. 23 It was held in Gutnick that, in the case of publication on the Internet, it is only when material is downloaded onto the computer of the reader that there is a publication of that material for the purpose of the law of defamation : at [44] (joint judgment); Gaudron J agreeing at [56]; see also [I241 per Kirby J and [I841 per Callinan J. The issue arose in that case in the context of a dispute as to the place of the tort, but the analysis in the joint judgment is of general application. 25 ... Following the hearing, Mr Smark (with leave) drew my attention to a similar determination in the decision of the Full Court of the Supreme Court of Western Australia in The Buddhist Society of Western Australia v Bristile [2000] WASCA 210. [Included at R.A. Tab 41 26 In that case, a majority of the Court rejected an argument that separate files on an Internet site that were linked to one another should be regarded as one item for the purposes of the law of defamation . ..." 71. Similarly, this Court's ruling in Computer Corp. v. Union des Consommateurs, [2007] 2 S.C.R. 801 [R.A. Tab 91 makes clear in a commercial context that whether or not hyperlinked pages within one site are treated as an integral series requires a close examination of the surrounding words and context. A Link is Not An Endorsement 72. To repeat part of Berners-Lee's statement quoted earlier: "Normal hypertext links do not of themselves imply that the document linked to is part of, is endorsed by, or endorses, or has related ownership or distribution terms as the document linked from." On the facts of the present case, the Court below held that there was no endorsement of the allegedly defamatory articles. 73. The dissent below took the view that it would be sufficient if the Respondent's internet publication amounted to an "invitation" or "encouragement" at para. 71 [A.A.R. p. 271. It is submitted that is a wrong approach. Arguably, any inclusion of a hyperlink, like a footnote, constitutes some degree of "invitation". However, words of invitation or encouragement cannot transform a normal, user-activated hyperlink into something automatic. The tort does not occur until the defamation is read, and that requires a user to take action and go to the third party site. 74. The majority rejected the "invitation or encouragement" approach, and even on a higher standards of "approbation or adoption" found the Respondent's words fell far short (para. 89). The majority also agreed with the summary trial judges approach as follows: "[85] In the case before us, the judge held concerning the context of the hyperlinks: [32] In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself. The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles. In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content. [33] As the Court of Appeal observed in Carter, citing the proposition of the New York cases MacFadderz v. Anthony and Klein v. Biben, "reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content. [86] In these observations, in my view, the judge was entirely correct." B.C. Court of Appeal Reasons [A.A.R. p. 301 75. As hyperlinking is expressive activity, and an essential aspect of the new intemet medium, the general proposition should be that internet publishers are free to link without fear of liability or any need to monitor or exhaustively review the linked site. If an exception for "endorsement" is enunciated, it is important that exceptions be narrow and clearly defined. Otherwise, the uncertainty web publishers would face would have a chilling effect. 76. In the present case, the Respondent's article simply noted that a lawsuit had been filed and linked to a diverse site that was involved in the suit. He did not say he endorsed what had been written, and indeed, readers were informed that Mr. Crookes had sued the alleged operators of openpolitics.ca, putting readers on notice that the words were in dispute. 77. Appellant's counsel below conceded that if the Internet address www.openpo1itics.ca had appeared in the respondent's internet article without a hyperlink, on the reasoning in Carter, the Respondent would not be a publisher. Are we to accept that the mere fact that one can click on the link, rather than type it into an Internet browser, or search the same term in Google, makes a real difference? Internet technology constantly evolves and it becomes easier and faster to jump from place to place with each passing year. Demon Internet and Notice 78. The Appellant emphasizes that the Respondent was asked to remove the hyperlink and did not do so. A parallel is suggested between cases such as the decision of an English trial level judge in Godfrey v. Demon Internet Ltd. The fallacy in this comparison is that in Demon, there was no escaping that the defendant was the host and transmitter of the defamatory postings. It had to rely on the statutory innocent dissemination defence which made knowledge and notice critically relevant. In the present case there was no hosting or transmission, and we are not dealing with a defence, but rather with the threshold question of publication. In Godfrey v. Demon Internet Ltd., [I9991 4 All E.R. 342 (Q.B) [A.A. Tab 61 79. In Demon, an Internet Service Provider was sued for defamation over an Internet posting which resided on Demon's computer servers connected to the Internet. The plaintiff had notified Demon of the posting, which Demon removed about two weeks later. Demon pleaded it was not liable, relying on s. 1 of the English Defamation Act which substantially codifies the defamation concept of "innocent dissemination". The plaintiff brought a summary judgment motion to strike that defence. Demon's knowledge was fatal to the defence under the statute. (pp. 346-348). 80. The present cases has none of the factors present that made notice relevant in Demon. The Respondent at bar is not raising an innocent dissemination defence. Moreover, the Demon scenario involves a defendant who was indeed the physical host and transmitter of the publication. This feature was emphasized by the judge in Demon at p. 348: "...the defendant, whenever it transmits and whenever there is transmitted from the storage of its news server a defamatory posting, publish that posting to any subscriber.. ." ...I do not accept Mr. Barca's argument that the defendant was merely the owner of an electronic device through which postings were transmitted. The defendant chose to store 'soc.culture.thai' postings within its computers. Such postings could be accessed on that newsgroup. The defendant could obliterate and indeed did so about a fortnight after receipt." 81. The distinction between simply linking to a site and actually operating the computer servers that store and transmit the publication is fundamental. In the case of an Internet service provider there is publication in fact, and the question is whether to hold the ISP responsible. A hyperlink in contrast does not distribute or replicate the linked publication. 82. In Metropolitan, a 2009 decision, Justice Eady dismissed an action as against Google on the grounds that a search engine cannot be regarded as a publisher. He held that this was the case both before and after notification of the alleged defamation (see para. 124). Metropolitan International Schools Limited 11. Designtechnicn Corporation et a1 [2009] EWHC 1765 (QB) at para. 33 [R.A. Tab 191 83. In the United States, a different approach was adopted by Congress in s. 230 of the Communications Decency Act, which broadly immunizes a wide range of secondary publishers liability regardless of notice. The Courts have rejected arguments for notice-based liability on various grourlds including a concern that plaintiffs could "manufacture" claims through notices to interactive service providers. Barrett v. Rosenthal, 40 Cal. 4th33 at p. 11 [R.A. Tab 21 Hyperlinking as a Deliberate Act 84. The Appellant emphasizes in his factum that a person who publishes an intemet article and who includes a hyperlink does so deliberately and that should lead to liability. The first response is that the assertion is over stated. Many hyperlinks are generated automatically by search engines, news aggregators, and so forth. Even individual authors may not "deliberately" create a hyperlink due to the features of modem software. Most word processing, email and web authoring software today creates a hyperlink automatically when a person types a word with '6 .corn", ".ca" or any other recognized internet address extension. The moment that person types a space after ding so, the intemet reference turns colour and becomes a link. 85. Beyond the question of automatically generated links, however, there is a broader answer to the Appellants argument. Merely saying that a certain act is deliberate is an entirely incomplete answer to liability. A person may deliberately join a club or deliberately include a footnote in an article, but the question of liability requires more than that. The question is whether the bilateral postindreading test for publication is met, and the insertion of a hyperlink alone does not meet either part of the test. 86. The law of defamation demands that the specific actions of each defendant be examined. It is not adequate, for example, to simply prove a person is a supporter or member of an organization which published a newsletter. McDonald's Corp. v. Steel [I9991 E.W.J. No. 2173 (C.A.), which stated at para. 193: "People acting collectively and effectively under a particular name are accurately described in ordinary English as "members" of a "group" ... One still has to look for evidence for or against participation in any particular activity, such as publication as a leaflet.. ." 87. This passage was specifically endorsed in BC in the case of Crow v. Home Equity, 2004 BCSC 124 beginning at para. 136, where the court went on to hold that certain individuals were part of not liable for contents of a newsletter opposing a land development even though they were part of the opposing group and knew the newsletter would be published by other members 88. The Respondent in the present case is even further removed from involvement than the defendants whose involvement was inadequate for liability in Steel or Crow. There is no suggestion the Respondent was a sympathizer or participant in any campaign against the Appellant. Indeed, his unchallenged evidence at the summary trial was that he had never heard of the Appellant until he read of the lawsuit against the operators of openpolitics.ca, and he had no interest in the Green Party issues that were the subject of the openpolitics.ca website, but only in the general issue of Internet speech. Responsibility 89. The Appellant relies upon the House of Lords decision on "responsible journalism" in Jameel v Wall Street Journal [2006] UKHL 44 [A.A. Tab 9 - this being a different Jameel decision from the one cited earlier], and this Court's decision embracing a similar "responsible communication" defence in Grant v. Torstar Corp., 2009 SCC 61 [A.A. Tab 71 and Quan v. Cusson, 2009 SCC 62 [A.A. Tab 111, as erecting some kind of responsibility obligation upon the defendant. 90. Without accepting any insinuation that the Respondent's Internet article was anything but responsible, it must be said that the Appellant's argument on this point mixes swords and shields. Jameel, Grant and Cusson enunciate a defence akin to due diligence that is available to a defendant who publishes negative statements that it cannot prove, or which turn out to be false. Where the subject matter was a matter of public interest, and the defendant handled the publication responsibly in the circumstances, the defence will apply. 91. This is not the same as saying that any publication that is irresponsible is actionable. The issues on this appeal do not involve the Respondent raising a defence that triggers an analysis of his degree of responsibility. They do not, in fact, raise any defence at all. The appeal is about the burden a plaintiff faces in proving publication when he comes to court and asks that a defendant be held liable for defamation and ordered to pay damages. On a summary trial, it was held he had not discharged that basic onus. Olivier v. SARL Bloobox 92. The Appellant has not presented a single case of defamation liability arising from a hyperlink. He refers (at paras. 53-54 of his factum) to a privacy case decided in France under the French Civil Code, Olivier v. SARL Bloobox, [A.A. Tab 101 in which the defendant operated a gossip "news aggregator" site, fuzz.fr, which contained a link to an article about the plaintiff's romance with a celebrity, Kylie Minogue. The trial level French court did award very small damages totalling $2500 Euros, but liability was overturned on appeal [A.A. Tab 11. 93. Even if there were an analogy between the privacy case and a defamation proceeding, the Bloobox decision [A.A. Tab 101 has little precedential value. It was decided under the French statute, and unlike the case at bar, the hyperlink in Bloobox revealed the essential fact at the heart of the alleged breach of privacy: it named the plaintiff and Ms. Minogue (although the law report uses initials) and said "toujours arnoureux, ensemble B Paris" [A.A. Tab 1, p. 31. 94. On the appeal, the Cour d'Appel held that the claimant had failed to give notice as required under the statute, that Bloobox was not the editor or publisher of the hyperlink, which had been inserted by a user. The Court noted that the company had no actual knowledge and had no means of verifying the content of linked sites. Conclusion - Expression and Reputation 95. Hyperlinking is one of the fundamental features that enables the world wide web to flourish. The world wide web is today a vital medium of expression. Hyperlinking itself is expression. It is not realistic to expect web authors to exhaustively review the content of every website to which they hyperlink, or to constantly monitor the changes to those websites. There would be a chilling effect upon web authors of imposing liability for hyperlinks, with a collective impact on the free flow of information, knowledge and expression across the internet. 96. The web has developed with an ethos of free linking. Bemers-Lee wrote: "The web was designed to be a universal space of information, so when you make a bookmark or a hypertext link, you should be able to make that link to absolutely any piece of information that can be accessed using networks. The universality is essential to the Web: it loses its power if there are certain types of things to which you can't link." Quoted in Sableman, Link Law Revisited, Berkeley Technology Law Journal, 16(3), Fall 2001[R.A. Tab 271 97. The prospect of liability for hyperlinks would also lead to a multiplicity of lawsuits as claimants seek to expand the defendant list, which also chills expression. The Appellant's multiple lawsuits prove the point. He has sued defendants far and wide over the same or substantially the same articles. He has sued over hyperlinks and even hyperlinks to hyperlinks. 98. In circumstances where the claimant could (indeed this Appellant did) sue the actual publishers of the original openpolitics.ca articles, courts have emphasized that damages must reflect the worldwide access and potential replication of an Intemet message: Barrick Gold Corp. v. Lopehandia, 2004 CanLII 1293 [R.A. Tab 31. In that sense, existing damages principles for internet defamation already take into account the various means by which information on the internet can expand the audience. 99. Would imposing liability on hyperlinkers serve any substantial purpose in protecting reputations? Plainly not. Plaintiffs can pursue the web authors, which is the choice made by the US Congress when it statutorily immunized interactive service providers. Hyperlinks do not replicate, create or distribute additional copies of publications; when a page disappears or is corrected, the hyperlink does nothing to preserve the old version. Reasonable readers know when they click a hyperlink they are going to a different publication by a different writer, and reading someone else's assertions, with their own context and credibility, or lack thereof. 100. The cost to freedom of expression is too great a price to pay for marginal benefit in the protection of reputation that would flow from imposing liability for mere hyperlinks. Hyperlinking alone should not attract in defamation liability. ORDER SOUGHT CONCERNING COSTS 101. The Respondent asks that the appeal be dismissed with costs. PART V ORDER SOUGHT 102. The Respondent seeks an order the appeal be dismissed. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Dated at Vancouver, British Columbia, this 20th day of September, 2010. n d LQ,.M Daniel W. Burnett Counsel for the Respondent, Jon Newton , PART VI TABLE OF AUTHORITIES Cases A1 Amoudi v. Brisard & Another [2006] EWHC 1062 (QB) Barrick Gold COT. v. Lopehandia, 2004 CanLII 12938 (ON C.A.) Carter v. B. C. Federation of Foster Parents 2005 BCCA 396 Barrett v. Rosenthal, 40 Cal. 4th33; 51 Cal. Rptr. 3d 55; 2006 Cal. LEXIS 13529 Buddhist Society of Western Australia Inc. v. Bristile Ltd. & Anor [2000] WASCA 210 Crookes v. De Simone, 2007 BCCA 5 15 Crookes v. Holloway 2007 BCSC 1325 Crookes v. Pilling, 2007 BCSC 630 Crookes v. Yahoo!, 2008 BCCA 165 Dell Computer Corp. v. Union des Consommateurs, [2007] 2 S.C.R. 801 Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56 Duke of Brunswick v. Harmer (1849) 14 Q B 185 Godfrey v. Demon Internet Ltd., [I9991 4 All E.R. 342 (Q.B) Grant v. Torstar Colp., 2009 SCC 61 Hird v. Wood (1894), 38 S.J. 234 (C.A.) Hill v. Church of Scientology, 119951 2 S.C.R. 1130 [excerpt] Housen v. Nikolaisen, [2002] 2 S.C.R. 235 [excerpt] Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) Jameel (Yousef)v. Dow Jones & Co Inc. [2005] EWCA Civ 75 Jameel v. Wall Street Journal [2006] UKHL 44 Kermode v. Fairjm Media Publications Pty Ltd. 120091 NSWSC 1263 Klein v. Biben, 296 N.Y. 638 (Ct. App. 1946); 1946 N.Y. LEXIS 1221 MacFadden v. Anthony, 117 N.Y.S. 2d 520 (Sup. Ct. N.Y. 1952); 1952 N.Y. Misc. LEXIS 2041 McDonald's Corp. v. Steel [I9991 E.W.J. No. 2173 (C.A.) Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v. Designtechnica Corp (t/a Digital Trends) & Ors [2009] EWHC 1765 (QB) Miura v. Miura (1992), 66 B.C.L.R. (2d) 345 (C.A.) Olivier v. SARL Bloobox Net (November 21,2008), Cour d'appel de Paris 14kme chamber, section B (legalis.net), No RG 08/07/07801 (Cour d'appel de Paris) Reeves v. Arsenault, [I9951 P.I.E.J. No. 159 Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers 2004 SCC 4 WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420 Articles Bemers-Lee, Tim. Links and l a w . Available from http://www.w3.org/DesignIssues/LinkLaw Bemers-Lee, Tim. Links and Law: Myth. Available from http://www.w3.org/DesignIssues/LinkMyths.html Parent, Ingrid and Cmickshank, Neil. The Growth of the Internet and Knowledge Networks, and their Impact in the Developing World. 2009. Available from Sage Publications. http:Nidv.sagepub.com/. Accessed 9 September 2010. Sableman, Mark. Link Law Revisited: Internet Linking Law At Five Years. 2001. Available from http://www.law.berkeley.edu~joumals/btlj/articles/vol16/sableman/sabl eman.pdf. Accessed 14 September 2010. Travis, Michael. What is the Legal Status of Hyperlinking and/or Deep Linking, 9 Auckland U . L. Rev. 976 (2000-2003) -30PART VII ENACTMENTS RELIED ON None