2022 December 16

Pineau v. KMI Publishing and Events Ltd., 2022 BCCA 426 (CanLII)

The British Columbia Court of Appeal doubled to $120,000 the general damage award made by the trial judge, ruling that the lower court had erred in law “in failing to consider the full scope of the [defendant’s] distribution of the Defamatory Article … and specifically in failing to give any weight to the breadth of circulation of the KMI newsletter.”  The KMI newsletter was posted in the online version of Human Resources Magazine Canada.  In addition, “KMI included the headline of the defamatory Article in an online newspaper distributed to 32,000 subscribers” along with “a hyperlink to the article that stated ‘READ MORE’”.  “KMI circulated a hyperlink to the Defamatory Article by email and through Twitter from at least two accounts, likely in the same format as that contained in the newsletter.”   “The trial judge cited Crookes v Newton, 2011 SCC 47 [Crooks] and Malak v Hanna, 2019 BCCA 106 [Malak] in support of the proposition that publication of a hyperlink to a libelous statement does not itself constitute publication of the libel … He concluded in this case that ‘neither the newsletter nor the tweets themselves constitute publication of the libelous statements’, and that ‘[p]ublication is confined to the online version of Human Resources Magazine Canada.”

The Court of Appeal held that “Crookes does not stand for the proposition that a defendant’s conduct in increasing the circulation of their own defamatory publication via transmission of a hyperlink is irrelevant to the assessment of damages.”  “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.”  “[W]here a plaintiff adduces evidence sufficient to establish that a defamatory publication has been circulated to a broader audience through the use of hyperlinks, such evidence is relevant to the assessment of damages.  I do not read Crookes to hold otherwise.”

The second factor influencing the Court of Appeal to increase the general damages award was the trial judge’s reliance on irrelevant factors to mitigate the damages.  In this regard, the lower court’s assessment had violated the principle that admissible evidence to show a plaintiff’s bad reputation does not extend to evidence of prior publication of the same or similar libel.  An article in a different publication included innuendo about the plaintiff which “mirrored the content of the Defamatory Article.”  “It was not open to the trial judge to reduce damages on the basis the [plaintiff’s] reputation was already tarnished by the [prior article in the other publication]”.  The fact that the author of the Defamatory Article “had copied content that had already been published elsewhere is not a factor that can properly be taken into account to reduce damages.”