2023 May 24

Environmental Defence Canada Inc. et al v. Kenney et al, 2023 ABKB 304

The Alberta Court of King’s Bench denied a defence application for summary dismissal of defamation claims, ruling that the defendants had not established that the impugned online statements do not refer to the plaintiffs.  The plaintiffs complain in this lawsuit about four statements (and their combined effect): (1) a post to the defendant Kenney’s Facebook account; (2) an identical tweet on the defendant Kenney’s Twitter account; (3) linked statements on an Alberta Government “Inquiry Webpage”; and (4) a “Key Findings Document” linked directly to the “Inquiry Webpage”.   The Key Findings Document contained a list of “Participants” which included the names of the six plaintiffs.

The Court held that “a reasonable person who saw the social media posts would follow the link to read further about the results of the Inquiry.  That link leads to the News Release which refers to ‘Canadian-based environmental initiatives,’ ‘proponents of these campaigns’ and ‘environmental groups.’ The New Release link then would lead that reasonable person to the Key Findings Document and its list of Participants.  That is, the actual names of the Plaintiffs are two direct ‘clicks’ away from the original statements of Mr. Kenney.”  “The links in the social media posts, the News Release and on the Inquiry Webpage are breadcrumbs leading to the actual subjects: ‘the Participants’.  It is not by happenstance that the reader would select the correct series of links to arrive at the Key Findings Document.  The path is straightforward.”  “Suggesting that an inflammatory social media post, phrased in a way to grab the reader’s attention such that they are more likely to follow the embedded links, cannot be defamatory because the subject of the post is not named until the second direct link is clicked is unrealistic.  The argument [by the defendants] urges wilful blindness to the reality of the current forms of communication.  The protections of defamation law cannot be avoided simply by using embedded links instead of paragraph returns.  This is particularly true for social media venues like Twitter which have a strict word limit for the user:  links are virtually necessary for any Tweet more substantial than a comment on the weather.”