The emergence of the Internet has raised new questions around
the law of defamation – most recently, whether
hyperlinking comes within the scope of the publication rule.
The Canadian Supreme Court, in a decision released this month,
has given freedom of the Internet a fillip by concluding that to
hyperlink is not to publish and therefore that simply to hyperlink
to a defamation is not to defame.
This Brief Counsel looks at the judgment and its
The legal test for defamation
A defamation claim involves legal action to protect a
person's reputation from unwarranted injury by the words of
another. Defamation law 101 requires the aggrieved party to
publication of words
that identify the aggrieved party
and which lower the aggrieved party's reputation
in the estimation of right-thinking members of society.
The publication element is usually the easiest to prove
– the newspaper was published, the news broadcast went to
air, the blog comment was posted. The publication is
However, hyperlinking has always been a more difficult
issue. Hyperlinking, at its simplest, is when one web page
contains a reference which can be clicked to direct a user to
another web page.
So what happens when web page A, completely inoffensive in all
respects, contains a hyperlink to web page B, an unrelated site,
which contains the most dastardly defamatory comments about an
individual? Has A published the comments by B?
Setting a courageously clear precedent, the Supreme Court of
Canada in Crookes
v Newton (2011 SCC 47, 19 October 2011) said by majority
an emphatic "no".
The Court was persuaded that hyperlinks are references that do
not communicate the content to which they refer. Accessing
the content requires an act by a third party. Equally, using a
hyperlink gives the author no control over the content which is
There is also freedom of expression to consider - in particular
the potential "chill" in how the Internet functions if
the role of hyperlinking in the flow of information were
impaired. The majority view was encapsulated by Abella J:
Hyperlinks ... share the same relationship with the content
to which they refer as do references. Both communicate that
something exists, but do not, by themselves, communicate its
content. And they both require some act on the part of a
third party before he or she gains access to the
The fact that access to that content is far easier with
hyperlinks than with footnotes does not change the reality that a
hyperlink, by itself, is content-neutral – it expresses
no opinion, nor does it have any control over, the content to which
it refers. 
The Court thought that in some circumstances, where the
hyperlinking suggested adoption or endorsement of the content being
linked to, there would be publication, but in general a mere
reference to a website would not be enough.
Part of the problem for Mr Crookes was that he could not prove
that anyone had actually used the hyperlinks to access the article
he was upset about. The Court was not prepared to assume,
from the number of hits on the offending website, that the
hyperlinks had been used.
Chapman Tripp comments
A lesson from the judgment is that anyone bringing a
hyperlinking case needs to get evidence that someone actually
clicked on the link. But we think the Supreme Court of
Canada's blanket rule might go a little too far. There
may occasionally be a need to cross the Court's bright
Here's why: the case involved both "shallow" and
"deep" hyperlinking. "Shallow"
hyperlinking is where the hyperlink directs the user to a website
generally – say, to its home page. "Deep"
hyperlinking directs the user to a particular page within the
In Crookes, one of the hyperlinks involved clicking on
Mr Crookes' name to be directed to a derogatory article about
him. A deep hyperlink from a person's name to a
derogatory article suggests to us a degree of adoption or
endorsement of the linked article. That was also the minority
view in the Supreme Court of Canada:
In sum, an approach that focuses on how a hyperlink makes
defamatory information available offers a more contextual and more
nuanceresponse to developments in communications media than merely
excluding all hyperlinks from the scope of the publication
In short, the case is good news for regular users of hyperlinks,
but we suspect there is enough in the minority Canadian judgment of
Deschamps J that the issue might still be up for debate if it were
to reach the Courts on these shores.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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