Posts tagged torts

SCC hyperlink decision has implications for educators


The blogosphere has had two weeks now to digest the recent ruling of the Supreme Court of Canada in Crookes v. Newton (CanLII), where the high court ruled that simply the act of hyperlinking to defamatory material elsewhere on the internet does not alone constitute defamation.  The decision upholds the rulings of two lower courts, so the outcome is not necessarily a surprise; however, the details of the decision have broad implications for anyone who posts commentary online. 

Educators, in particular, should pay attention, given that teaching is increasingly shifting to become an online activity.  More professors and teachers are blogging than ever before, and students are demanding more and more that materials be made available through the web.

Hyperlinking (Wikipedia) is an active connection or reference to another website through a sensitive word or phrase, allowing the reader to cut directly to additional information relevant to what they are currently reading.  A hyperlink can be “shallow” – i.e. linking to page with relevant articles, like a newspaper’s homepage – or “deep” – i.e. linking directly to a relevant article. 

The relationship of hyperlinking to defamation is timely because the internet, or more significantly the way we use the internet, has created an environment where defamation is easy, simple and common.  In the past, if you wanted to defame an enemy, you generally had to use or be a member of the media.  But current communication technologies provide nearly everyone with access to the tools of defamation.

Here is a summary (The Canadian Encyclopedia) of the ingredients of defamation from Lewis N. Klar, an expert in Canadian tort law:

In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person.  Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished.  This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.

The specific issue in Crookes was the third item in this paragraph, namely whether the plaintiff had established that the defendant had conveyed defamatory meaning to a single third party that had received it.   If nobody hears or reads it, then it’s not defamation.

The facts in this case are fairly straightforward: Crookes claimed that Newton had defamed him by having hyperlinks on Newton’s website to other websites containing allegedly defamatory material.  On first blush, Crookes’ argument makes sense.  If you aren’t allowed to call someone bad names, you shouldn’t be allowed to direct traffic to another site where those names are being tossed around.  But, at the same time, you should be allowed to present a portal to possibly offensive material without taking ownership of everything that appears there.  Freedom of expression vs. the right to protect one’s reputation.  The stuff of interesting judgments.

Justice Abella, who wrote the majority decision in Crookes, had several important comments:

  • The law should not create a presumption of liability for all “hyperlinkers”.  That would seriously curb the free exchange of information.
  • A hyperlink is generally used more as a reference than as a way to reproduce text conveying an idea – that is, it’s more like a footnote than an excerpt.  It establishes a door and does not demonstrate any content set out on the other side.  A hyperlink, then, is “content neutral”. 
  • A hyperlinker can select the destination of the hyperlink but has no control over the content, which may vary from time to time.
  • Consequently, a hyperlinker only publishes hyperlinked material when they reproduce the defamatory content in some way.

The high court ruled that since all Newton did was hyperlink to allegedly defamatory material, his actions were not sufficient to establish “publication”.  

Two other judgments were released by other members of the court, each of which agreed with Justice Abella’s conclusion but emphasized different concerns and arguments.  For example, Justices McLachlin and Fish added that using a hyperlink as a reference should not constitute defamation, but where a secondary author endorses or recommends defamatory material through a hyperlink, well, that’s a different story.  Justice Deschamps expressed concern that Justice Abella’s decision provided too great an exclusion to the rule of publication, and remarked that going after the originator and not the reporter (i.e. the hyperlinker) may be a challenge given the anonymity and global nature of the internet. 

The lesson?  Don’t think you can get away doing indirectly that would get you stung for doing directly.  Trashing reputations is generally not a protected exercise of free expression.  If you are going to play with fire by hyperlinking to potentially toxic material, use the hyperlink as a footnote without taking ownership over the material or sharing too much of it.

Here (The Court) is a link to additional analysis on the judgment.


Court of Appeal upholds Hussack decision against Chilliwack school board


The BC Court of Appeal released its decision last week in the Hussack case (previously discussed here), largely dismissing the claims in appeal made by School District #33Here is the coverage in the Vancouver Sun and here (BC Injury Law) and here (Injury Lawyers Blog) are commentaries on the outcome. 

Hussack deals with a high school student, Devon, who was whacked in the face with a stick while playing a game of field hockey at school.  The boy subsequently developed considerable challenges that leave Devon unable to complete many tasks on his own.  The thrust of the appeal by SD #33 involved questioning whether the teacher’s failure to gradually prepare Devon for the sport exposed him to harm or, in other words, whether the absence of the preparation made the type of harm Devon eventually suffered reasonably foreseeable, such that had the teacher been exercising the appropriate care over him Devon never would have been encouraged to play.  Here is what the Court of Appeal had to say to that:

Here, not only was it reasonably foreseeable that a student might be struck on the head or face with a field hockey stick, Mr. MacPhee did foresee that risk, as evidenced by his “no high sticking” rule.  It was also reasonably foreseeable that a student would sustain an injury to his or her head if this occurred.  The trial judge, having found the somatoform disorder was consequential to the post-concussion syndrome, properly concluded based on the evidence and authorities that the respondent had established the appellant’s negligence was the proximate cause of Devon’s injury.

The only place in the appeal that SD #33 got some relief was in the amount of damages awarded to Devon, which was reduced slightly.  Otherwise, much of the decision affirms the views of the trial judge.

This case follows a string of recent decisions discussing teachers’ torts – that is, how a lapse by a teacher, particularly in gym class, can lead to a serious injury to a student and a major liability for a school board.  The idea is that while no nobody is perfect, and hindsight is always 20/20, teachers should be expected to take reasonable steps to avoid certain bad things from happening to their students.  And if those things happen, the school board should have to pay for it.


Teachers’ Torts: Acknowledging the Judge in Gym Class


Physical education (PE) teachers beware: there may be a judge in your future.

In March 2007, Paige Hamilton was a seventeen year-old girl attending grade 11 at North Delta Secondary School. During a PE class, Paige was accidentally hit in the face with a floor hockey stick by a classmate, which left her with a broken nose. She also complained of bruising around her eyes and difficulty breathing, and she felt self-conscious about an unattractive lump on her nose that she alleged was caused by the incident.

Some time later, Paige did what any 17 year-old student might do: she sued the school. She claimed the teacher was negligent for failing to require the use of protective gear and offering inadequate supervision. For her troubles, Paige argued she want entitled to general damages of between $25,000 to $28,000, plus reimbursement of $4,000 for cosmetic surgery not covered by MSP.

In Hamilton v. School District #37 (Delta), the Supreme Court gently embarrassed Paige in two ways:

  1. by dismissing her claim and holding that it did not come close to meeting the standard necessary to show negligence by a teacher; and
  2. by finding, in very polite terms, that she was not entirely credible as a witness and, in a case that was largely fact-specific, that made a sizeable dent in her likelihood of success. 

The end result of her experience with the court system was, presumably, difficult for her because of the lawyer’s bill saddled on her (or her parents), the stressful memories of testifying and acting as a failed plaintiff against a former school, and the public record now imprinted in legal databases discussing her injuries and anxieties.

As discussed previously on this blog, there are four main criteria to determine whether a teacher has satisfied his or her obligation to act with due care and caution toward an injured student:

  1. whether the activity was suitable for the mental and physical condition of the student;
  2. whether the student was progressively trained and coached to do the activity properly and safely
  3. whether the equipment was adequate and suitably arranged; and
  4. whether there was proper supervision.  

These criteria were established (though not as a fixed code) in Myers v. Peel County Board of Education, a Supreme Court of Canada decision in 1981 dealing with a student who was paralyzed when he tried to complete a difficult gymnastic manoeuvre without supervision in a school exercise room that did not have appropriate floor mats. 

There are two well-know cases in British Columbia that show a school board’s threshold for liability in these sorts of claims.  In Hussack v. School District No. 33 (Chilliwack), where a grade 7 student was hit in the head with a field hockey stick during a PE class, the Supreme Court concluded that the teacher had failed to prepare the student to play the sport safely before letting him join the game. In Peterson (Guardian ad Litem) v. School District No. 36, Surrey, where a grade 11 student was hit in the head with a bat during a PE class, the Court of Appeal decided that the teacher had failed to advise the class about the foreseeable dangers involved with the sport.

In Paige’s case, two elements – inexperience and improper supervision – were not established.

Sports injuries are an inevitable part of teenagehood and, as odd as it sounds, this means the courtroom has entered gym class. PE teachers must follow certain procedures when allowing sports with any risk of injury or welcome lawsuits that could blot their resumes and inflict financial damage on their school boards. Students and parents must ensure that before starting a lawsuit they fully understand the legal and non-legal implications of hiring a lawyer to heal a sports injury.

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