The Supreme Court of Canada has now made clear that the use of hyperlinks to defamatory content on the Internet does not itself amount to publication of that content and therefore does not amount to defamation, absent some repetition of the defamatory content. In coming to this conclusion, the Court recognized that a different conclusion would have created a “chill” on how the Internet functions, given the importance and extensive use of hyperlinks.
At issue in Crookes v. Newton, 2011 SCC 47 was a website owned by Mr. Newton on which he posted an article containing both shallow and deep hyperlinks to other websites which discussed Mr. Crookes. Shallow hyperlinks take a reader to a webpage, while deep hyperlinks take a reader directly to an article.
Mr. Crookes sued Mr. Newton on the basis that two of the hyperlinks on Mr. Newton’s website connected to defamatory material. The British Columbia trial judge disagreed, concluding that the hyperlinks were like footnotes, and while they referenced another source, they did not repeat the defamatory content. A majority of the British Columbia Court of Appeal agreed and noted that nothing in the article amounted to encouragement or an invitation to view the linked material. However, the dissenting judge disagreed with the footnote analogy and drew an inference that there had, in effect, been publication of the defamatory materials, given the 1,788 hits on Mr. Newton’s website.
The Supreme Court of Canada concluded there was no defamation, with all but one judge agreeing that Mr. Newton’s hyperlinks did not amount to an act that constituted publication, although that one judge also absolved Mr. Newton of liability since there was no evidence of a publication to third parties.
Writing for a majority of six, Justice Abella explained that a plaintiff in a defamation case must establish that defamatory meaning has been conveyed to a third party who has received it. Traditionally, how the defendant conveyed the defamatory material was irrelevant, but if this rule were applied to hyperlinks, the effect would be a presumption of liability. Freedom of expression also had to be considered.
On the basis that hyperlinks communicate that something exists but do not themselves communicate content, Justice Abella concluded they were like footnotes. A third party must take a further step before gaining access to the content. Thus, hyperlinks, like footnotes, are “content neutral”. Of particular concern with hyperlinks is the inability of a party inserting a link to control the content in the link itself. Only a repetition of the defamatory content constitutes defamation by the person inserting the hyperlink. In this regard, Justice Abella stated, at para. 42:
Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.
Chief Justice McLachlin and Justice Fish agreed with the majority’s conclusion but applied a more contextual approach, such that if the text in which the hyperlink appears adopts or endorses specific content to which it links, that will constitute publication. Justice Deschamps declined to endorse a “bright line” test that excluded hyperlinks from the publication rule. Instead, he endorsed a test that looks at whether the party inserting the hyperlink is deliberately making defamatory material readily available in a comprehensible form.
It is the majority’s bright line test, which future courts will apply. However, the other approaches put forward by the minority may still have some impact since the Court specifically declined to “anticipate, let alone comprehensively address” the types of hyperlinks, such as embedded or automatic links, that may be of consequence in future cases.
The case clearly establishes limits on liability for linking to defamatory content. It will be interesting to see whether this reasoning is extended to other contexts in which hyperlinking occurs on the Internet. For example, it is not clear whether a hyperlink to copyrighted material, such that it is referenced but not actually copied, would be subject to the same reasoning as the majority of the Supreme Court applied in the Crookes case.
Crookes v. Newton does, however, endorse the “innocent dissemination defence” and suggests that internet service providers, like booksellers and libraries, to the extent they only play a secondary role in the distribution system, cannot be found liable for defamatory material. Justice Abella referenced the “innocent dissemination” defence and noted that “subordinate distributors” escape liability if they have no actual knowledge and are not negligent in failing to find out. It is the reasoning in the innocent dissemination case law and commentary that underlies the reasoning that a mere reference to defamatory material does not amount to defamation.
At the heart of the Supreme Court’s interpretation of the publication rule and its concern with any potential “chill” on how the Internet functions, is the issue of free speech. Prior to the introduction of the Charter, Canadian defamation law largely protected reputations, but now a proper balance with freedom of expression must be achieved. Since the Internet’s ability to provide access to information without hyperlinks would be severely impaired, the traditional approach to defamation could not be applied. As stated by Justice Abella:
Given the significance of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.
