2019 April 1

Malak v. Hanna, 2019 BCCA 106

In this case, the British Columbia Court of Appeal considered, inter alia, whether an actionable “publication occurred when persons directed by [the individual plaintiff Malak] to find defamatory material on the Internet located and read that material.”  In this regard, the Court of Appeal rejected the defendant Hanna’s argument that his defamatory Internet article was not “published” when it was read by the plaintiffs’ lawyer and employees.  Referring to Duke of Brunswick v Harmer, (1849), 14 Q.B. 185, where the plaintiff proved publication by having an agent purchase a newspaper published 17 years before he filed for defamation, the Court of Appeal noted that the plaintiff Malak did not employ an artifice to avoid a limitation period.  Further,  the Court of Appeal noted that what Malak did was “essentially no different from what was done by the plaintiff in Rudd v Cameron(1912), 8 D.L.R. 622 (Ont.C.A.), aff’g (1912), 4 D.L.R. 567 (Ont.H.Ct.J. (Div.Ct.)).  The plaintiff, a merchant and building contractor, learned someone was making defamatory statements about him, but did not know the source.  He hired two detectives for the purpose of finding the source and bringing an action against that person.  The detectives made the acquaintance of the defendant.  When they mentioned the plaintiff was anxious to build a club house for them, the defendant made disparaging remarks about the plaintiff.   The plaintiff’s action in defamation succeeded and the defendant unsuccessfully appealed; first to the Divisional Court and then to the Court of Appeal.   … Speaking for the majority [in the Ontario Court of Appeal], Justice Maclaren stated: (at 623) that ‘the defendant … published the slanders he uttered; and he is not in the same position as if he had spoken the words to the plaintiff himself’.  … In concurring reasons, Justice Meredith opined that an action would not lie in defamation if a plaintiff, directly, or by means of a third party, induced a defendant by subterfuge to speak defamatory words about him merely for the purpose of bringing an action.  However, he did not view the facts as involving such impermissible conduct.  … The fact in the present case provide an even stronger basis for finding publication than those in Rudd v Cameron.  In that case, the action was based on a defamatory statement that did not exist until the detectives spoke to the defendant.  Here, the action was based on defamatory statements Mr. Hanna posted on the Internet for the world to see before Mr. Marr [an employee], Mr. Young [an employee] and Ms. Rossos [the plaintiffs’ lawyer] found them.”

The defendant Hanna’s submission that a communication to a lawyer is not “publication” for the purposes of defamation was also rejected by the Court of Appeal, which held that a lawyer will not be treated as standing in the plaintiff’s shoes unless two conditions are each met, namely:  “(1) the defendant communicated with the plaintiff’s solicitor to communicate with the plaintiff; and (2) the plaintiff intended to receive the communication through its solicitor.”  In this case, neither condition was satisfied.

The Court of Appeal also concluded that there was “publication by Mr. Hanna” of defamatory material which Hanna had posted to the Internet each time third parties clicked on hyperlinks to those materials contained in various emails sent by a co-defendant and one unidentified individual.

With respect to other issues of liability, the Court of Appeal ordered a new trial on the issues of:  (i) whether the co-defendants Jackman and Paine are liable on the basis they participated in a common design with Mr. Hanna; (ii) whether Mr. Hanna is liable with respect to the August 6, 2012 email containing a defamatory poem he sent to Jackman and Paine; and (iii) the liability of Valley Traffic Systems.