Canada: No Liability For Defamation For Basic Hyperlinks, Says Supreme Court

Bloggers, tweeters, webpage owners and other providers and hosts of internet content can breathe a little easier today following a decision of the Supreme Court of Canada that ruled that merely providing hyperlinks to defamatory content cannot make them liable for defamation.

That said, while the decision provides clear support from the highest court in the land for both free expression and the preservation of the nature and benefits of the internet as whole, it stops short of giving hyperlinkers a "Get Out of Jail Free" card for all uses and presentations of links to defamatory material.

The much-anticipated decision in Crookes v. Newton, 2011 SCC 47concerned a defamation action grounded on the posting by a website operator of two simple hyperlinks to defamatory content located on other sites. The website operator refused to remove the links upon request by the plaintiff, and the plaintiff brought an action in defamation in British Columbia, where he was unsuccessful both at trialand at a subsequent appeal to the B.C. Court of Appeal. At issue before the Supreme Court was the question of whether a simple hyperlink reference to defamatory information could constitute a "publication," a key element of the tort of libel.

The case had been very closely watched by the internet community, as a negative ruling had the potential to impose an unprecedented chilling effect on the way content is shared online, effectively subverting one of the fundamental underpinnings of the design of the World Wide Web.

While the majority acknowledged in their judgement that the internet is a potentially powerful vehicle for defamatory expression, they also explicitly recognized the indispensability of hyperlinks in facilitating access to online information, and ruled so as to preserve the ability of users to provide basic links to third party content without fearing that they will become legally responsible for that content. The majority likened simple hyperlinks (which merely reference the existence and location of content) to footnotes or references, noting that both are necessarily content-neutral, with the poster having no control over the content to which they refer, and that both require some act on the part of the reader before the content can be accessed. This type of basic link, the Court ruled, does not amount to an expression of meaning and cannot possibly be a publication of defamatory material.

While the decision provides clear immunity for providing simple hyperlinks to defamatory content, the three separate judgements that underlie the decision (either concurring or concurring in the result) leave the door open to potential liability for hyperlinking in other ways and contexts. Moreover, the decision may have significant implications with respect to liability for hyperlinking other types of prohibited or unauthorized content

Beyond the scenario of simple hyperlinking, which the Court found will not attract liability, things get murkier. The majority appears to conclude that for those hyperlinking to third party content, only repetition of the defamatory statement in the link or associated text will attract liability; however, in joint concurring reasons, Chief Justice McLachlan and Justice Fish purported to "clarify" that, notwithstanding the apparent bright line test set out in the majority judgement, defamation would also be possible where the text indicates adoption or endorsement of the hyperlinked content, even if it doesn't repeat the defamatory statement. In a separate judgement that concurred in the result, Justice Deschamps favoured a more nuanced approach, where content posters would attract liability for defamation if they deliberately make the defamatory information readily available to a third party in a comprehensible form (although the defence of innocent dissemination may still be available). In light of these varying approaches, it will be interesting to see how Canadian courts may deal with hyperlinking liability issues on different facts and in different contexts.

The majority also noted that, in an era of rapidly evolving technologies, it may become necessary to consider in the future the liability that could be attracted by other types of links, which are or may become available, such as embedded or automatic links. (The facts before the Court involved one "shallow" link to a site's homepage and one "deep" link to a specific page further down in the site's hierarchy of content).

Finally, while the Crookes decision dealt exclusively with publication in the context of defamation, it may have broader implications for liability for hyperlinking to other types of prohibited or unauthorized content. For example, some commentators have argued that the Court's interpretation of publication may have implications for the meaning of "publication" or "reproduction" under the Copyright Act.

The approach could also conceivably raise implications for criminal liability. For example, the offence of public incitement of hatred focuses on the act of "communicating statements" in a public place.Bill C-51, introduced in the last session or Parliament, but yet to be reintroduced, following the spring election, included a provision that would have amended the offence to indicate that "communicating" would include "making available," which, as pointed out by the accompanying Legislative Summary, would include providing a hyperlink to the offending material.

Although the Crookes ruling is an important victory for content posters and internet supporters generally, there are still many aspects of the legal implications of linking to unauthorized or illegal content that remain to be definitively settled in Canadian law.

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.