The Supreme Court of Canada has agreed to weigh in on whether
hyperlinking to defamatory material on another website can give
rise to liability for defamation. It has granted leave to appeal
the BC Court of Appeal decision in Crookes v.
Newton. Newton had written an article on his website in
which he linked to allegedly defamatory articles on other sites
about Crookes. Crookes sued Newton for defamation, alleging that
Newton became a publisher of the impugned articles by creating
hyperlinks to those articles or by refusing to remove the links
when advised of the articles' defamatory character.
The BC Supreme Court dismissed Crookes's action, finding
that merely hyperlinking to defamatory material, without repeating
the comments themselves, does not amount to publication. The court
also found that there could not be a finding of publication without
proof that visitors to the defendant's website actually
followed the hyperlinks and read the defamatory statements on the
other sites. The BC Court of Appeal dismissed the appeal, but
implied that hyperlinking could constitute publication in some
circumstances — for example, if the writer invited or
actively encouraged viewers to read the defamatory materials or
adopted the defamatory content.
McCarthy Tétrault Notes
The Crookes case gives the Supreme Court of Canada a
chance to opine on the issue of liability for linking to defamatory
content. The decision may also serve to define the scope of website
operators' responsibility, if any, toward content that can be
accessed from their websites, including whether they have a duty to
check sites they link to for libellous or even hateful and obscene
materials. The dissenting ruling at the BC Court of Appeal set out
a number of factors to determine whether a hyperlink constitutes
publication. Should the Supreme Court adopt a similar test to judge
the degree to which a website induces readers to follow a
hyperlink, it will be interesting to see if that test is applied to
other areas of online liability.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).