On October 19, 2011, the Supreme Court of Canada issued an
important decision regarding application of the law of defamation
to Internet hyperlinks that lead to defamatory material. In a
traditional context, in order to establish the defendant has
"published" defamatory content, the plaintiff has to
prove that (1) the defendant had, by any act, conveyed
defamatory meaning, and (2) that this meaning had been conveyed to
a third party who had received it. In Crookes v Newton,
2011 SCC 47, the Supreme Court of Canada revised this rule in order
to adjust its application to the Internet, and, more specifically,
The facts of the case are simple. Jon Newton owns and operates a
website. An item he posted on his website contains hyperlinks to
other websites, which, in turn, contain information about Wayne
Crookes. Crookes sued Newton on the basis that the hyperlinks he
created connected to websites which represented a "smear
campaign" against him. Crookes' allegation was that, by
merely creating those hyperlinks, Newton was in fact
publishing the defamatory information.
The question asked to the Supreme Court was whether hyperlinks
that connect to allegedly defamatory material can be said to
"publish" that material. The Court's answer was that
they do not: "making reference to the existence and/or
location of content by hyperlink or otherwise, without more, is not
publication of that content."
The majority based their reasoning on two elements:
Hyperlinks, like footnotes, are content neutral. A hyperlink
communicates that something exists, but it does not, by
itself, communicate any content.
A hyperlink grants its author no control over the content of
the article to which it connects. In fact, this content can and
often does change after the link is created.
To create such an exception, effectively excluding hyperlinks
from the scope of the traditional publication rule, is an adequate
solution to the novel issues raised by the Internet. To have held
otherwise may have created, following the first branch of the
traditional "publication" test, a presumption of
liability for all persons incorporating hyperlinks on their
websites. Such a position would have been perfectly untenable since
"[t]he Internet cannot...provide access to information without
hyperlinks." As expressed by the Supreme Court, if hyperlinks
were, in and of themselves, defamatory publications, "primary
article authors would unlikely [have wanted] to risk liability for
linking to another article over whose changeable content they have
no control." Visibly, this would have impaired the
Internet's functioning as a whole.
The Supreme Court's judgment does, however, offer certain
limits. Justice Abella's resounding defence of the Internet
should not be construed as a free pass for defamation. Although a
reference to the existence of content is not publication of that
content, "when a hyperlinker presents content from the
hyperlinked material in a way that actually repeats the defamatory
content, [such content] should be considered to be
'published' by the hyperlinker." This proviso is
emphasized by both the Chief Justice and Justice Fish in the test
they propose in their concurring judgment: "[p]ublication of a
defamatory statement via hyperlink should be found if the text
indicates adoption or endorsement of the content of the
As the rule stands, hyperlinks – mere content neutral
references – cannot engage liability for defamation.
Nevertheless, considering the majority's proviso and the
concurring minority's proposed test, prudence would suggest
preceding adding appropriate disclaimers to websites using external
hyperlinks. This small effort may help you avoid being held liable
for the defamatory content of others as long as you do not adopt or
endorse the hyperlinked content as mentioned above.
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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