…is this what you want?

Remember that wee graph Gore had, of the past few years of temperature for our planet.  Was it an INCONVENIENT TRUTH for you, Mr. Gore, to show the rest of that temperature graph?   What was your personal energy consumption again?  The words hypocrite, elitist, and fraud leap to mind.

…why? because I still have internet!

CanLII – 2015 BCSC 165 (CanLII)

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Weaver v. Corcoran,

[204]     While the defendants maintain Dr. Weaver invited people to connect the dots, it is evident the comments about the fossil fuel industry were made in the context of a series of questions about the “war for public opinion” – the propaganda campaign – not as to who broke into Dr. Weaver’s office. Dr. Weaver’s office was broken into twice within three days in 2008. He did not say the fossil fuel industry might be responsible for that break-in; nor did he implicate them in the other break-in incidents at the University of Victoria.

[205]     To access the fair comment defence, the defendants are required to prove the facts they are relying on as true. I do not find the fact that “Dr. Weaver claimed the fossil fuel industry might be responsible for break-ins to his office in UVic” to be established in this case. The defendants relied heavily upon and commented upon the O’Toole article as a foundation piece for their respective articles – Weaver’s Web and Weaver’s Web II; indeed, all four articles. This ultimately impacts on the availability of the defence of fair comment

……..

“[245] Dr. Weaver asks the Court to conclude Mr. Corcoran, through the article Climate Agency Going up in Flames, deliberately set out to create a damaging impression of the plaintiff through distortion, fabrication, and omission of facts. Not only did the defendants fail to apologize, but they left three of the publications including, Climate Agency Going up in Flames, on the Internet, despite the plaintiff’s express request; the knowledge acquired in the course of the discoveries and Dr. Weaver’s evidence on direct. Dr. Weaver submits this can be used to support an inference of malice. Further, the defendants did not take the trouble to listen to the recording of the O’Toole interview. They were simply not interested, also supporting a finding of malice in this case.

[246] As noted in Creative Salmon at para. 33, malice is a state of mind. While Dr. Weaver argues malice is evident in the defendants’ actions, I do not find malice to be present. Rather, I conclude the defendants definitively espouse a skeptical view of climate change and are unwavering in their expression of this. While certainly entitled to express those views, in this case as part of that expression, they deliberately created a negative impression of Dr. Weaver.[247] In doing so, I conclude the defendants have been careless or indifferent to the accuracy of the facts. As evident from the testimony of the defendants, they were more interested in espousing a particular view than assessing the accuracy of the facts. This lack of accuracy has led in part to my conclusion that certain aspects of the articles, especially when read together, are defamatory and are not saved by the fair comment defence. This is not sufficient, however, to lead to a finding of malice.”

[247]     In doing so, I conclude the defendants have been careless or indifferent to the accuracy of the facts. As evident from the testimony of the defendants, they were more interested in espousing a particular view than assessing the accuracy of the facts. This lack of accuracy has led in part to my conclusion that certain aspects of the articles, especially when read together, are defamatory and are not saved by the fair comment defence. This is not sufficient, however, to lead to a finding of malice.

[248]     The test for establishing whether a defamatory statement(s) was published was set out in the Supreme Court of Canada decision in Crookes at para. 16 as follows:

To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it (McNichol v. Grandy, 1931 CanLII 99 (SCC), [1931] S.C.R. 696, at p. 699). Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant:

There are no limitations on the manner in which defamatory matter may be published. Any act which has the effect of transferring the defamatory information to a third person constitutes a publication.

(Stanley v. Shaw, 2006 BCCA 467 (CanLII), 231 B.C.A.C. 186, at para. 5, citing Raymond E. Brown, The Law of Defamation in Canada (2nd ed.), vol. 1, at No. 7.3.)

[249]     The Supreme Court of Canada summarized the basic legal principles behind re-publication in Breeden v. Black, 2012 SCC 19 (CanLII) at para. 20. The Court noted:

20        … It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party. In this case, publication occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication. The original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication (R. E. Brown, The Law of Defamation in Canada (1987), vol. 1, at pp. 253-54). In my view, the republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule.

[250]     The plaintiff submitted into evidence two large volumes of alleged re-publications. The plaintiff points out where the re-publication was authorized by the author or where the re-publication is the natural and probable result of the original publication, the original publisher will be jointly and severally liable with the re-publisher. In this case, the plaintiff points out the reader was invited to email; twitter or send the articles to friends.

[251]     The evidence of re-publication includes numerous downloads of Weaver’s Web; Weaver’s Web II; Climate Agency Going up in Flames; and some of So Much for Pure Science from various websites. The defendants maintain, however, republication cannot be a mere hyperlink as stated in Crookes. Thus, the “story tools” on the National Post website do not qualify as authorization. The evidence established these are merely permitted hyperlinks back to the original article.

[252]     It was not disputed the defendant National Post owns and operates a number of different websites such as:

http://www.nationalpost.com/

http://www.financial post.com

http://network.nationalpost.com

http://www.facebook.com/NationalPost

[253]     The defendant National Post publishes electronic versions of certain articles from each day’s edition of the hardcopy National Post newspaper and electronic versions of the Financial Post Magazine on the National Post Internet sites, where they are accessible on the Internet.

[254]     The defendant National Post also publishes electronic versions of certain articles from each day’s edition of the hardcopy National Post newspaper and electronic versions of the Financial Post Magazine in a “subscribers” zone on the Internet at http://www.nationalpost.com/ and http://www.financiapost.com and http://canada.com, accessible with a paid subscription to the National Post or a paid subscription to daily newspapers published by Canwest, including the Victoria Times Colonist, The Province (Vancouver), the Vancouver Sun, the Edmonton Journal, the Calgary Herald, and others.

[255]     Canwest also publishes electronic versions of certain articles from each day’s edition of the hardcopy National Post newspaper and electronic versions of the Financial Post Magazine on an electronic database operated under the name “FPinformat.ca”, which is accessible on the Internet at http://www.fpinformat.ca [the “Financial Post Database”].

[256]     The defendant National Post also publishes electronic versions of certain articles from each day’s edition of the hardcopy National Post newspaper and electronic versions of the Financial Post Magazine in certain electronic databases accessible on the Internet, including the following:

(i)        Proquest;

(ii)      Factiva; and

(iii)     The Financial Post Database

[257]     Dr. Weaver reviewed many of the alleged re-publications in his evidence. This included at least one email, dated January 3, 2010, from a colleague of Dr. Weaver that attached another email to the Premier at the time, Gordon Campbell, with the attached article Climate Agency Going up in Flames. This alone may well be sufficient to establish re-publication of the article.

[258]     The contents of the impugned articles were however reproduced numerous times over the Internet. The National Post says this is in violation of its copyright. John Racovali, the Assistant Managing Editor of the National Post who is in charge of legal matters, said the National Post may occasionally send a “cease and desist” letter but not much more as the National Post may not be aware of the violation.

[259]     Copies of the downloaded publications contain reader comments, an example of which is Heatwave, referencing Climate Agency Going up in Flames and posted January 25, 2010:

Andrew Weaver was a willing participant in the AGW fraud and his “jumping ship” at this time will not save his sorry ass.

[260]     A review of the material demonstrates further reader comments, including many reader comments on the Climate Audit site of the article. In my view, this evidence is sufficient to establish the fact of re-publication. As noted in Crookes at para. 109, “if a plaintiff proves facts from which it is reasonable to infer that the words were brought to the knowledge of some third person, that will establish a prima facie case of publication”. These reader comments, accessed and reviewed by Dr. Weaver, in my view prove the fact of republication of the impugned articles.

[261]     The invitation to email the article to a friend meets the test set out in the jurisprudence that re-publication is the “natural and probable result of the original publication”. The invitation is to email an article, the content of which is known and indeed created by the defendants. This is unlike the situation in Crookes which involved a website concerning commentary on various issues with hyperlinks to other websites, the content of which is not controlled by the operator of the website. In this context, I am prepared to conclude that a reasonable inference could be drawn of publication to a third person of each of the articles at issue.

[262]     Crookes pointed out the potentially harmful impacts of defamatory speech on the Internet. As noted by Abella J., writing for the majority, at para. 37:

… Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace: (2000), 49 Duke L.J. 855, at pp. 863-64:

Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. …

[263]     I also acknowledge the comment as noted in Brown on Defamation at pp. 7-190, that “to subject hyperlink to the traditional rules of publication would have a serious chilling effect on the functioning of the Internet and the flow of information and this, in turn, would adversely affect freedom of Expression”. This comment is referenced at para. 36 of Crookes, as per Abella J.

[264]     Also in Crookes it is noted by Deschamps J. in her concurring judgment:

[101]   My colleague Abella J. states that “[r]eferencing on its own does not involve exerting control over the content” (para. 26 (emphasis in original)). Yet the concept of publication in the common law of defamation has never involved a rigid requirement of control. Instead, the inquiry has always been contextual: did the defendant act knowingly and what were the consequences of his actions? (Brown, at para. 7.3) Although a formal distinction can of course be drawn between references and other acts of publication, this distinction evades the questions that are at the heart of the law of defamation. Where a person deliberately makes defamatory information readily available through the creation of a hyperlink, the very rationale for the tort of defamation comes into play.

[265]     As noted, however, by Abella J., it appears that control of the content at issue on the Internet may well inform the developing framework to analyze the legal issues at this time. A review of the concurring opinions establishes these are early days in the consideration of the impact of the Internet on jurisprudence concerning publication and defamation. As such, there is likely room for a nuanced approach when considering the emerging issues.

[266]     Accordingly, taking into account the jurisprudence expressed above and the circumstances of this case, I have concluded re-publication of each of the articles has occurred.

[267]     Dr. Weaver also complains about the numerous reader postings arising from each of the articles. The defendants once again say they are not publishers of the reader postings as they do not have effective control over those posts. Even if they did, the defendants raise the defence of innocent dissemination and fair comment.

[268]     There is no real dispute that some of the reader comments are defamatory. Indeed, the evidence was that some of these comments were removed because of that complaint. I have reviewed the comments and concluded, in any event, that many were defamatory clearly attacking the plaintiff’s character in a vitriolic manner

[269]     The parties are of the view this case raises, for the first time in Canada, the issue of whether one who operates an internet forum – in this case a reader comment area on the newspaper’s website – is liable for third-party postings.

[270]     In Crookes at para. 20, the Supreme Court of Canada acknowledged the defence of innocent dissemination, which developed in an earlier era for secondary distributors such as booksellers, will likely come into play with secondary Internet publications. The Court recognized however that, on the Internet, courts must be careful to develop the law in a way that does not unduly stifle the free exchange of ideas. As such, in Crookes, the Court held hyperlinks are not publications.

[271]     The Supreme Court of Canada in Crookes concluded while the legislator has created a specific presumption a publication in respect of broadcast, it has not done so in respect hyperlinks and therefore the court should refrain from creating a new one: at para. 108.

[272]     The defendants argue there is no evidence of awareness and no evidence that the National Post or any of its columnists were involved as an editor of any words in the reader posts. They maintain the National Post has a passive instrumental role in the dissemination of the reader postings or took no deliberate action amounting to approval, adoption, promotion or ratification of the contents of the reader posts: Home Equity.

[273]     Once the defendants became aware of the comments in the reader postings and received a complaint, they were then taken down. The volume of postings is such it would not be realistic to expect the defendant to pre-vet every posting.

[274]     Dr. Weaver notes the defence of innocent dissemination is not available to the defendants, as this was a defamatory article published by the defendants. As noted in Slack v. Ad-Rite Associates Ltd. (1998), 79 O.T.C. 46, “every person who takes part in the publication of defamatory material bears responsibility for its publication, including writers, editors, printers and distributors”. This case is unlike that of a bookseller who may say they did not see the contents. Further, the defendants were made aware Dr. Weaver said the material was defamatory. While the defendants say they took the reader comments down as soon as they were made aware of them, this evidence is not credible.

[275]     I agree, as argued by the defendants, that the cases appear to establish the requirement to show an active or deliberate act in making defamatory information available to establish liability. This appears to be a consistent approach in a number of English cases which have grappled with the issue.  The one concern, however, is how this jurisprudence can be applied to the National Post, which is a content provider, not simply an Internet Service Provider (“ISP”). While hyperlinks may lend themselves to a more bright-line analysis, as characterized by Deschamps J. in Crookes, a more nuanced approach is necessary for reader comments which the National Post invites.

[276]     The degree of knowledge and involvement to be a publisher was explored in Home Equity, where a number of individuals were sued in defamation over a “Hardball Newsletter”. All of the defendants were found by the trial judge to be “in some way involved in its publication”. The trial judge nevertheless ruled that “the question remains as to whether that involvement was sufficient to find them liable…” (para. 134).

[277]     In Godfrey v. Demon Internet Ltd., [1999] EWHC 244 (Q.B.) [Godfrey], defamatory material was published by an ISP, Demon Internet. When the plaintiff discovered this material, he requested it be removed. Demon Internet agreed, but failed to remove it. The Court held that the ISP was considered to be a publisher as of the date that the material was brought to Demon’s attention. After that date, there was no sustainable defence of innocent dissemination because it could not prove that it had taken reasonable care in relation to its publication.

[278]     In Bunt v. Tilley, [2006] EWHC 407 (Q.B.) [Bunt], three defendant ISPs posted defamatory messages on websites operated by three other defendant ISPs. The defendant ISPs operating the website applied to have the action against them dismissed. They were successful. At paras. 21- 23, Eady J. found a passive role was not sufficient to establish liability. He held that there must be some proof a person was aware of the publication before being held liable for it:

[21]      …If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason why liability should not accrue.

[22]      I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility…

[23]      Of course, to be liable for defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.

[279]     Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765 (Q.B.), reviewed Godfrey and Bunt and found Google was not a publisher of “snippets” that were compiled when an individual entered search terms into its search engine. Eady J. concluded Google could not be found to be a publisher because it had not “authorised or caused the snippet to appear on the user’s screen in any meaningful sense”: at para. 51.

[280]     ln Tamiz v. Google Inc., [2013] EWCA Civ 68 at para. 25, the England and Wales Court of Appeal found that Google “plainly facilitates publication of the blogs (including the comments posted on them)” and its involvement did not make it a primary publisher of the blogs in light of the fact that it did not create the blogs, nor did it have any knowledge of or effective control over the blogs content, and it was not in the position of traditional primary publishers.

[281]     Mr. Racovali stated before an individual is entitled to post a reader comment, they must be logged in to the National Post to read and registered to post a comment. To register, contact information must be provided including an email address. The reader is then invited to post a comment on the website. A person who registered in 2009 accepted terms that precluded the use of false, defamatory or libelous language and retained the right of the publisher to remove any user content. Mr. Racovali testified however the sheer volume of visits and traffic to the web page was such that the National Post could not possibly pre-vet comments.

[282]     Essentially, it appears the jurisprudence establishes some awareness of the nature of the reader posts is necessary to meet the test of publication. As per the comments by Deschamps J. in Crookes at paras. 84-85:

84        The courts have begun incrementally to impose limitations on the nature and types of actions that can attract liability for defamation at common law…

85        There appears to be an emerging consensus among the courts and commentators that only deliberate acts can meet the first component of the bilateral conception of publication. According to Prof. Brown, “a person must knowingly be involved in the process of publishing the relevant words” (para. 7.4 (emphasis added)). In Stanley v. Shaw, 2006 BCCA 467 (CanLII), 231 B.C.A.C. 186, pleading that the defendants “said and did nothing” (at para. 7) was held to be insufficient to support a finding of publication, because no tortious act had been alleged in relation to their silence (see also Smith v. Matsqui (Dist.) (1986), 1986 CanLII 1117 (BC SC), 4 B.C.L.R. (2d) 342 (S.C.), at p. 355; Wilson v. Meyer, 126 P.3d 276 (Colo. App. 2005), at p. 281 (“[a] plaintiff cannot establish [publication] by showing that the defendant silently adopted a defamatory statement”); Pond v. General Electric Co., 256 F.2d. 824 (9th Cir. 1958), at p. 827 (“[s]ilence is not libel”); Brown, at para. 7.3. In Scott v. Hull, 259 N.E.2d. 160 (Oh. App. 1970), at p. 162, a U.S. court held that “[l]iability to respond in damages for the publication of a libel must be predicated on a positive act, on something done by the person sought to be charged”. I agree with this view. [Emphasis in original]

[283]     While there was no direct evidence of the volume of comments in December 2009, the evidence shows there are currently nearly a quarter million visits a month across the National Post and Financial Post websites. There were 47,000 hits per month in November 2011, which were the earliest available figures. It is therefore reasonable to infer there were many thousands of visits per month in the December 2009 to February 2010 period when the publications occurred. I accept this difficulty would prevent reasonable attempts to pre-vet reader comments on the posted articles.

[284]     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 publishers as at that date.

[285]     In this case, while Mr. Racovali could not recall who he spoke to about having the comments removed, he testified within one or two days of receiving the complaints of the reader posts, he took steps to remove the offending reader posts. While Dr. Weaver says this evidence is not credible as Mr. Racovali did not make a note of this, I accept his evidence on this point. The reader posts were clearly offensive. There is no apparent reason for the National Post to retain posts of such vitriolic character.

[286]     Action must immediately be taken to fulfill the responsibility not to distribute defamatory material. The evidence establishes that was done within one to two days to address that problem. In my view, that is all the defendants could realistically do in the circumstances. While the plaintiff maintains more should have been done, I am unable to agree based on the evidence before me. As technology progresses, the answer and evidence on this issue may well be different.

[287]     Due to the prompt removal of the offending reader comments once known to the defendants, I have concluded the defendants are not publishers of the reader postings. Accordingly, I do not need to deal with the defence of innocent dissemination or fair comment.

[288]     Some general principles applicable to an assessment for damages for libel were outlined by Cunningham J. in Leenen at 728-729, as follows:

In attempting to arrive at the appropriate level of general damages in a defamation case, one must always be aware of not only the damage inflicted to a person’s reputation but also the fact that once damaged a reputation is very difficult to restore. Always mindful of the fine balance between freedom of speech and the protection of reputation, once the scales have been tipped through defamation, a plaintiff is entitled to be compensated not only for the injury caused by the damage to his integrity within his broad community but also for the suffering occasioned by the defamation. A number of cases including Nagy v. Webb, 1930 CanLII 152 (SK CA), [1930] 1 W.W.R. 357, [1930] 2 D.L.R. 234 (Sask. C.A.); Thomas v. C.B.C., [1981] N.W.T.J. No. 12, supra’, Vogel v. C.B.C., [1982] B.C.J. No. 1565, supra, and Thompson v. NL Broadcasting Ltd. (1976), 1 C.C.L.T. 278 (B.C.S.C.) established factors which might be considered in assessing the appropriate level of compensation. While not all inclusive, some of these factors are as follows:

(a)        the seriousness of the defamatory statement;

(b)        the identity of the accuser;

(c)        the breadth of the distribution of the publication of the libel;

(d)        republication of the libel;

(e)        the failure to give the audience both sides of the picture and not presenting a balanced review;

(f)        the desire to increase one’s professional reputation or to increase ratings of a particular program;

(g)        the conduct of the defendant and defendant’s counsel through to the end of trial;

(h)        the absence or refusal of any retraction or apology;

(i)         the failure to establish a plea of justification.

[289]     As in Leenen, the defamation in this case was serious. It offended Dr. Weaver’s character and the defendants refused to publish a retraction. The libel was widely published by at least one high profile journalist and two others. In addition, the libel effectively ran through a serious of articles in a national newspaper published over a short and continuous time period. Re-publication of the libel occurred as established by the plaintiff.

[290]     I am of the view a significant award is appropriate. The inferential meaning of the words implies a serious defect in character that impacts Dr. Weaver’s academic and professional world. The evidence establishes Dr. Weaver was deeply affected by what he perceived as a barrage of articles impugning his integrity and academic reputation. These gave rise to the “Wall of Hate” that he maintained outside his office; comments, he noted, which arose after the publication of those articles.

[291]     I consider an award of $50,000 in general damages against all defendants jointly and severally to be appropriate in this case. I decline to award aggravated or punitive damages. I have not found malice to be present in this case.

[292]     Dr. Weaver sought an injunction and assignment of copyright. I direct the defendants to remove the offending articles from any electronic database, where they are accessible under the control of the National Post Internet sites and electronic databases. In addition, the defendants are required to expressly withdraw any consent given to third parties to re-publish the defamatory expression and to require these third parties to cease re-publication.

[293]     Further, the defendants will publish a complete retraction of the defamatory expression in the hardcopy National Post Internet sites and electronic databases in a form agreed to by the plaintiff. Failing agreement, the parties are at liberty to apply to this Court for directions concerning the form and content of such retraction. As to the question of ordering an assignment of copyright, without more foundation, I am unable to accede to that as requested by the plaintiff in this matter.

[294]     The parties are at liberty to speak to the question of costs, if they cannot agree.

________ “Burke J.”________
Burke J.

via CanLII – 2015 BCSC 165 (CanLII).

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