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.
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