The Supreme Court of Canada (the "SCC")
released today its judgment in the case ofCrookes v. Newton, 2011 SCC 47,
holding that the linking to other websites, on its own, does not
constitute "publication" of defamatory
The case involved a lawsuit by a businessman and former political
campaign manager against a website operator who he claimed was
responsible for a "smear campaign" through the
publication of defamatory materials on a website. While the website
itself, which contained postings of articles and commentaries on a
number of subjects, did not contain any allegedly defamatory
articles, one of the articles on the site contained hyperlinks
(which require a reader to click on a link before being taken to
other sources) to other websites which, in turn, contained the
allegedly defamatory material.
In order to succeed in an action for defamation at common law, the
complainant must establish that the defamatory words were
"published" (i.e., were communicated to at least one
person other than the complainant). Thus, the issue before the SCC
was whether hyperlinks that connect to allegedly defamatory
material constituted "publication" of such
In a decision upholding the dismissal of the action for
defamation, Justice Abella, writing on behalf of six judges, held
that "a hyperlink by itself, should never be seen as a
"publication" of the content to which it refers".
Justice Abella noted that hyperlinks were, in essence, references
directing readers to other sources which are often produced by
someone other than the person who inserted the hyperlink. While
hyperlinks "communicate that something exists", they
"do not, by themselves, communicate its content".
Justice Abella recognized the need to balance an individual's
right to his or her reputation with the interest in protecting
freedom of expression in the context of Internet communications.
Nonetheless, while recognizing the "tremendous power" of
the Internet to harm reputation, Justice Abella noted that
hyperlinks were an "indispensable part" in facilitating
the Internet's capacity to disseminate information and
recognized the "chill" of considering hyperlinking as a
 The Internet cannot, in short, provide access to
information without hyperlinks. Limiting their usefulness by
subjecting them to the traditional publication rule would have the
effect of seriously restricting the flow of information and, as a
result, freedom of expression. The potential "chill" in
how the Internet functions could be devastating, since primary
article authors would unlikely want to risk liability for linking
to another article over whose changeable content they have no
control. Given the core significance of the role 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
Justice Abella noted, however, that individuals may attract
liability for hyperlinking where they actually "express"
something defamatory such as, for example, where a person places a
reference in a text that repeats defamatory content from a
Thus, the key issue is whether a hyperlinker has merely made
reference to the existence and/or location of content by a
hyperlink or otherwise – which, without more, will not be
considered "publication" of that content – or
whether the hyperlinker has presented the hyperlinked content in a
way that actually repeats the defamatory content in which
case the content will be considered "published" by the
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.
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