This bit missing:
this court I prefer the approach taken in Crookes in that making reference to the existence of something by hyperlink, without more, is not publication of that content. As Abella J observed the hyperlink communicates something exists but a further act is required before access is gained to it….”
Conclusion
26. In my view, the provision of a live link to a video on the YouTube website does not fall within the definition of “representations and any supporting evidence” that may be “provided” by the recipient of a notice to owner and “received” by the EA in accordance with sub-paragraphs (4)(a) and (1) of Regulation 6 of the Appeals Regulations and which must, as such, be “considered” by the EA in accordance with that Regulation.
27. The provision of hyperlink is not evidence itself, such as what is written within the representation, or any electronic attachment provided with it or uploaded to the EA’s website. I would give as an example of the latter the image file that was “provided” to, and “received” and “considered” by the EA in this case in the conventional way. I also add that the provision of a live link, or hyperlink, is not one of the “forms and manners” by which representations may be made, as stated on the notice to owner pursuant to Regulation 3(1)(c) and (2) and Regulation 5(2)(a).
28. Rather, the provision of a live link, as identified in the authorities from which I quoted above and from which I derived some assistance, merely communicates that something exists, with a further act required to access it. A representation containing such a live link does not contain, or even append, its content; it is merely a reference to it. I do not accept that a live link is evidence any more than an appellant stating in a representation or a notice of appeal, as they sometimes do, “If you call my friend, she will tell you what happened…”
29. The EA was not under a duty or obligation to follow the live link any more than it would be under an obligation to contact the friend in the example given above. Therefore, its refusal or omission to do so does not amount to a failure to consider the representations and any supporting evidence as required by the Appeals Regulations.
30. Nor, in my view, was the EA under any duty or obligation to provide to this tribunal, as “original representations”, the live link, rather than merely a copy of the URL as provided to it by the recipient of the PCN.
31. An EA could, if it wished, choose to follow a live link provided in representations and consider the material online. That would likely mean, however, that in order to comply with paragraph 3(3) of Schedule 1 to the Appeals Regulations, the EA would have to download the material and provide it to the tribunal.
32. Based on the wording and meaning of the two sets of applicable Regulations, as I interpret them, no procedural impropriety is proved.
