COURT FILE NO.: CV-13-5353-00
DATE: 2021 04 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SOLOCHANA SHANTHAKUMAR, by her Litigation Guardian Shantakumar Mylabathula
Plaintiff
- and -
MING PAO DAILY NEWS (CANADA) INC. and WST MEDIA GROUP INC.
Defendant
Peter Callahan for the Plaintiff
No one appearing for the Defendant
HEARD: March 26, 2021
REASONS FOR JUDGMENT
MANDHANE J.
[1] The plaintiff, Solchana Shanthakumar (“Shanthakumar”), moves for default judgment against WST Media Group Inc. (“WST Media”) for the tort of defamation.
[2] The statements at issue were contained in a 2010 article (“the article”) posted on a Chinese-language website owned by WST Media (“the website”). Shanthakumar alleges defamation in relation to an English translation of the article (“translated article”) that appeared instantaneously when the website visitor clicked on a Google Translate widget (“widget”) embedded on the website.
[3] For reasons that follow, I dismiss the plaintiff’s action. In my view, an online publisher that provides a free widget that allows visitors to generate instantaneous, automated translations cannot be said to have “published” the translated text and therefore cannot be held liable for statements contained in such translations.
FACTS
[4] On October 4, 2010, Shanthakumar and Mylabathula were arrested by the RCMP and charged with fraud in relation to an alleged scheme to fraudulently obtain a government-backed small business bank loan.
[5] On November 5, 2010, the RCMP posted a news release to their website describing the investigation and charges (“RCMP news release”).
[6] On November 6, 2010, WST Media posted a related article to its Chinese-language website. The article could be instantly translated by clicking on an embedded Google Translate widget. Shanthakumar says that WST Media is liable for defamatory statements contained in the English translation of the article.
[7] Shanthakumar’s claim for defamation rests on her assertion that the translated article included defamatory statements that were not found in the original RCMP news release (“additional statements”).
[8] The additional statements are summarized as follows:
a) The RCMP news release referred to “a reportedly fraudulent application,” whereas the translated article referred to “a large number of application documents”;
b) The RCMP news release said that the fraudulent application related to “a loan in the amount of $244,800,” whereas the translated article referred to “a loan in the amount of 25 million”;
c) The RCMP news release stated that the “bank uncovered irregularities and falsehoods in the individuals’ applications,” whereas the translated article stated that the bank “found loopholes in the application materials”;
d) The RCMP news release stated that Shanthakumar “had been charged with one count of fraud over $5000” and that the matter was currently before the Ontario Court of Justice, whereas the translated article stated that the couple had been charged with “multiple charges of fraud, forgery, providing false information” and that the matter was currently before the Superior Court of Justice; and
e) The RCMP news release stated that “penalties range up to 14 years in prison”, whereas the translated article states that “if the two men convicted as they face up to 14 years in prison.”
[9] Shanthakumar first became aware of the translated article on or around January 25, 2013 when relatives from India called Mylabathula to ask him about the allegations. The next day, January 26, Mylabathula sent a letter to WST Media demanding that the article be removed on the basis that the charges against the couple had been stayed; he threatened legal action if the article was not removed.
[10] WST Media did not reply to this correspondence and did not remove the article from its website.
THE PROCEEDINGS
[11] In a Statement of Claim dated November 28, 2013, Shanthakumar seeks general, aggravated, and punitive damages for defamation in an amount to be fixed by the Court. She names Ming Pao Newspapers (Canada) Ltd. (“Ming Pao”) and WST Media as defendants. WST Media never filed a response and pleadings were closed against it.
[12] On September 20, 2017, on a motion for summary judgment, Price J. dismissed the action against Ming Pao: Shanthakumar v. Ming Pao Newspapers, 2017 ONSC 5553. Justice Price found that “the publication by the RCMP of the fact that Ms. Shanthakumar had been charged with fraud would not support a claim for defamation, and a claim based on the re-publication of that fact, also discloses no genuine issue for trial”: Shanthakumar, at para. 33.
[13] Justice Price noted that Shanthakumar did not provide “any jurisprudence regarding liability for defamation based on the continued publication of the fact of a criminal charge after the charge has been withdrawn.” The Court found that the fact that “a reasonably thoughtful and informed member of the public in Canada would understand that the individual is not guilty but presumed innocent until proven guilty would appear to foreclose a claim of defamation based on the mere publication of a criminal charge, even after the charge has been withdrawn”: Shanthakumar, at para. 34.
[14] The plaintiff filed her trial record in relation to WST Media in 2018.
[15] On March 26, 2021, I presided over Shanthakumar’s motion for default judgment and undefended trial. To prove defamation, she relies on her Statement of Claim and Mylabathula’s viva voce evidence. In support of her claim for damages, Shanthakumar says that her reputation in the community has been irreparably damaged.
ANALYSIS
The three-part test for defamation
[16] In Grant v. TorStar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, the Supreme Court of Canada set out the three-part test for defamation. To obtain judgment, the plaintiff must prove, on a balance of probabilities, that:
a) the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
b) the works in fact refer to the plaintiff; and
c) the words were published, meaning that they were communicated to at least one other person.
[17] Once the plaintiff has shown that the defendant published statements harmful to her reputation, falsity and damage are generally presumed, and the onus shifts to the defendant to advance a defence to escape liability: Grant, at paras. 28-29.
Was the translated article defamatory?
[18] I agree with Price J. that WST Media cannot be held liable for simply republishing or repackaging the RCMP new release, and that it was not required to remove the article after the charges were resolved: Shanthakumar, at paras 33‑34.
[19] However, Shanthakumar has satisfied me that the additional statements in the translated article were defamatory in the sense that they would tend to lower her reputation in the eyes of a reasonable person: Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] 1 S.C.R. 1067, at p. 1079. The additional statements erroneously implied that Shanthakumar was involved in more than one fraudulent transaction and that the couple was alleged to have defrauded the government of millions of dollars.
[20] That said, Shanthakumar has not satisfied me that the additional statements contained in the translated article were “published” by WST Media. While the defendant clearly published the original article in Chinese, it did not “publish” the English translation of the article at issue.
[21] While there is no case law directly on point, in my view, a website that provides a free widget that allows visitors to generate instantaneous, automated translations cannot be said to have “published” the translated text, and therefore cannot be held liable for statements contained in such translations.
[22] An analogous situation was addressed in Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269, where the Supreme Court of Canada found that a defendant could not be found liable for content accessed by clicking on an imbedded hyperlink because the defendant did not “publish” the hyperlinked materials. In Weaver v. Corcoran, 2017 BCCA 160, 95 B.C.L.R. (5th) 362, at para. 86, the British Columbia Court of Appeal considered the plaintiff’s obligation to prove publication, stating the following:
Traditionally, any act which transferred defamatory information to a third person was considered publication. However, in the modern age this has been modified to exclude entirely passive acts, such as some forms of referencing or hyperlinking of defamatory material. Where the acts at issue merely transmit information in a content-neutral way, without expression, adoption or endorsement, they are generally not considered publication. [Citations omitted].
[23] Shanthakumar’s claim must fail because WST Media did not “publish” the translated article and cannot be held liable for its contents. I rely on the following factors in support of my finding:
a) The defendant did not take any positive action to post the translated article;
b) The widget was created by a third party and was offered to visitors as a free, independent, service;
c) The defendant did not have control over the widget insofar as it could not change its underlying translation algorithm and could not review or change the translated article before it was automatically displayed to the visitor;
d) The defendant required visitors to take positive action to view the translated article (i.e., by clicking on the widget);
e) The widget provided an instantaneous, automated translation that was itself “content neutral”;
f) The defendant did not take any responsibility for or make any warranties regarding the widget or the translated article’s accuracy; and
g) A reasonable person would know that the translated article was not a substitute for reading the article in its original language or obtaining an official translation.
[24] On the specific facts of this case, I also note that the full text of the translated article reveals many of the problems commonly associated with automated translation widgets insofar as it is rife with grammatical and typographical errors and inconsistencies. As such, I am not satisfied that the widget-translated article is a reliable translation of the original Chinese article. This further cuts against holding WST Media liable for the statements therein.
[25] From a policy perspective, barring defamation claims based solely on statements contained in automatically-generated translations is appropriate because a plaintiff may nevertheless advance a claim based on the text of the original article, so long as it is accompanied by an official translation: Pirie v. Carroll (1931), 1931 CanLII 718 (NB CA), 4 M.P.R. 127 (N.B.C.A.), leave to appeal refused, (1931), 4 M.P.R. 127, at p. 132n (S.C.C.); Dickman v. Gordon, [1912] O.J. No. 300 (Ont. H.C.). Indeed, Shanthakumar relied on an official translation in her claim against Ming Pao, but inexplicably chose not to do so in relation to her claim against WST Media. Her tactical decision is unfortunately fatal to her claim.
ORDER
[26] The plaintiff’s action for defamation against WST Media is dismissed.
Mandhane J.
Released: April 14, 2021
COURT FILE NO.: CV-13-5353-00
DATE: 2021 04 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SOLOCHANA SHANTHAKUMAR, by her Litigation Guardian Shantakumar Mylabathula
Plaintiffs
- and -
MING PAO DAILY NEWS (CANADA) INC. and WST MEDIA GROUP INC.
Defendants
REASONS FOR JUDGMENT
Mandhane J.
Released: April 14, 2021