In a victory for advocates of online free speech, the Supreme Court of Canada has unanimously dismissed a controversial libel suit based on Internet hyperlinks.
In Crookes v. Newton, the plaintiff sued for defamation arising from an Internet posting that contained hyperlinks to secondary sources which he alleged were defamatory. Drawing an analogy between hyperlinks and printed footnotes, a majority of the Court ruled that merely linking to material on the Internet does not, without more, constitute "publication" for the purposes of a defamation suit.
Wayne Crookes, a Vancouver businessman, alleged that Jon Newton defamed him by publishing an article on Newton's website that referred to Crookes's political activities and hyperlinked to secondary sources Crookes alleged were defamatory. The claim for defamation was based solely on the content of the secondary material to which the hyperlinks referred. Crookes argued that hyperlinking to the secondary material was akin to republishing the offending material.
The trial judge concluded that the creation of a hyperlink does not create a presumption that someone had clicked on and read the linked material. The trial judge also ruled that since Newton had not repeated the content alleged to be defamatory, there was no publication for the purposes of a defamation claim. A majority of the British Columbia Court of Appeal upheld the decision, finding that where there was no express encouragement or invitation to view the linked material, the hyperlink itself was not defamatory.
Court Declines to Restrict Flow of Information Online
Traditionally, defamatory content is "published" when a defendant conveys defamatory meaning to a single third party, regardless of the act or technology used. A majority of the Supreme Court of Canada determined that applying this traditional approach to hyperlinks would seriously restrict the flow of information on the Internet and, as a result, the freedom of expression.
This decision is a significant one for online publishers. The majority classified hyperlinking as a "fundamentally different" act of publication and one that is "indispensable" to the operation of the Internet. Referring to hyperlinks as "content neutral", the majority observed that while hyperlinks communicate that something exists, they do not, by themselves, communicate the content of the material that is hyperlinked.
Similarly, the majority recognized that simply linking to material on the Internet provides the "hyperlinker" no measure of control over the linked content. A hyperlink will only be considered an act of "publication" for the purposes of defamation when the hyperlink repeats defamatory content.
Three Sets of Reasons
While the Supreme Court was unanimous in dismissing the appeal, the bench expressed three different views as to whether hyperlinking can ever constitute publication:
- Justice Abella (joined by Justices Binnie, LeBel, Charron, Rothstein and Cromwell): "A hyperlink, by itself, should never be seen as 'publication' of the content to which it refers... Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be 'published' by the hyperlinker."
- Chief Justice McLachlin and Justice Fish: "A hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication."
- Justice Deschamps: "Excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet... a court should consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is a shallow or a deep link, and whether the linked information is available to the general public (as opposed to being restricted).
It is clear that a "footnote style" hyperlink that refers to defamatory material will not, without more, attract liability for defamation. However, the Court was divided on the question of whether and how a hyperlink's surrounding context can effectively "publish" the linked material for the purposes of defamation.
While the minority reasons suggest some contextual analysis of a hyperlink might be relevant in future cases, the prevailing view is that defamatory material must be expressly and intentionally repeated in a hyperlink for liability to arise. However, the majority also signaled that this decision may not be the final word as it concerns all hyperlinks. Writing for the majority, Justice Abella expressed the limits of the decision this way:
The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.
The Supreme Court of Canada has established a bright-line rule for defamation claims involving Internet hyperlinks: where a hyperlink does not expressly and intentionally repeat defamatory material, it will not attract liability for defamation. While this should provide some immediate comfort for online publishers, they should continue to be mindful of repeating or otherwise closely associating their Internet content with potentially libelous material.
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