The Supreme Court of Canada (the "SCC") released today its judgment in the case of Crookes v. Newton, 2011 SCC 47, holding that the linking to other websites, on its own, does not constitute "publication" of defamatory materials.

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 material.

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 "publication":

[36] 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 modernity.

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 secondary source.

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 hyperlinker.

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