2016 June 8
Kent v. Martin, 2016 ABQB 314
The Alberta Court of Queen’s Bench, in this trial judgment awarding damages to the plaintiff, considered what constitutes online publication. The defendants took the position that online publication of the allegedly defamatory newspaper article ceased after links to the article disappeared from the homepage of the Calgary Herald or National Post websites, so that the article was only available on the newspapers’ websites by using the search function. The Court noted that the article “could also be viewed on the internet through search engines such as Google by using words or phrases from the article, in which case the party searching would be directed to a link to the article which would appear on the National Post and/or on the Calgary Herald website. It would be displayed on a ‘live page’ that contained current advertisements and had buttons which allowed a reader to share the article with their Facebook or google groups, tweet the article or print the article.” The Calgary Herald suppressed all access to the article commencing October 2008, which prevented it even being accessed by searches. The National Post version, however, continued to be available until November, 2012 by searching the National Post website or the internet using key words from the article.
The Court rejected submissions by the defendant Postmedia that because it was not responsible for the initial publication carried out by its corporate predecessors before Postmedia acquired the websites and database in July 2010, the existence of the article within its database did not constitute a fresh or continuous publication. The Court noted that Postmedia was “not simply providing a link to defamatory material, but is the source of defamatory material” which is accessed from its database by someone conducting a search. “In this case, it was Postmedia who continued to publish the defamatory words making them available so that when someone did an internet search or Postmedia website search they were able to access the Article from the Postmedia SouthPARC database.” “Postmedia is … in the position of the publisher of the defamatory material.” The Court consequently held Postmedia liable for publishing the Article from July 2010 to November 2012.