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DEFAMATION - What constitutes publication - In mass media

Tuesday, April 30, 2019 @ 8:40 AM  


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Appeal by four defendants from a finding of joint and several liability for defamation. The key parties were involved in the business of providing traffic control services. The appellant H authored numerous defamatory statements in an article and a poem with respect to the respondent M. Most of the statements were posted on the Internet. The trial judge found the appellants engaged in a campaign of vilification against M and his companies to destroy their reputations and eliminate them as business competitors. The judge held the defences of qualified privilege, fair comment, and justification did not apply. He held the corporate appellant VTS vicariously liable for the actions of H, J, and P. The appellants argued the judge erred in finding they participated in a common design, finding publication to third parties, finding the poem to be defamatory, particularly with respect to the corporate respondent, and in finding the appellant company liable.

HELD: Appeals allowed in part. New trial ordered to determine liability against J and P on the basis they participated in a common design with H to vilify the respondents, liability against H for publishing the poem by means of an email sent to J and P, and liability against VTS. There was no basis for overturning the trial judge’s finding of fact that the poem was defamatory. The trial judge did not err in finding the corporate respondents had been defamed. H failed to demonstrate any palpable and overriding error in the trial judge’s finding that both M and his companies were stung by the defamatory statements. The trial judge erred in finding that emailing a hyperlink constituted publication. Publication did occur when persons instructed by M to find defamatory material posted on the Internet located and read that material. The trial judge erred in finding J and P jointly responsible for the publication of all the defamatory material as it could not be said with any confidence that the judge did not conflate credibility determinations with factual findings. The trial judge’s reasoning was ambiguous and open to the possibility he inferred J and P were involved not from proven facts, but because he disbelieved aspects of their evidence. There was no analysis in the judge’s reasons as to why he concluded J and P participated in a common design with H with respect to the publication of defamatory material. VTS’s direct liability was based on the finding that J and P participated in a common design to eliminate VTS’s competitors. As the finding with respect to J and P could not be sustained, neither could the finding that VTS was liable for either participating in that common design or on the basis it was vicariously liable for their actions. It could also not be said with certainty that the trial judge would have found VTS vicariously liable for H’s actions had the judge not found J and P participated with H in a common design.

Malak v. Hanna, [2019] B.C.J. No. 506, British Columbia Court of Appeal, S.D. Frankel, R. Goepel and S.A. Griffin JJ.A., April 4, 2019. Digest No. TLD-April292019006