Is a hyperlinker who creates a hyperlink to a website containing defamatory statements liable for "publishing" the defamatory statements in the site? The answer is no.
In the seminal cyberlibel decision of Crookes v. Newton, the Supreme Court of Canada recognized that the traditional common law rules of defamation cannot be applied to hyperlinks. The Court imposed a different standard of defamation law regarding the publication rule for hyperlinks than that which applies to print and broadcast media.
Hyperlinks Do Not Publish Defamatory Statements Found in the Linked Site
The traditional publication rule requires only that the libel plaintiff prove that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it: any act that has the effect of transferring the defamatory information to a third person constitutes a publication. The majority of the Court recognized that applying the traditional publication rule to hyperlinks would chill and devastate Internet communications:
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.
Although the Supreme Court unanimously dismissed the appeal, there was a divergence of opinion on the test to be applied to determine who was a "publisher" of the defamatory statements in the linked site. The majority of the Court held that making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. It held that "referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists ... Hyperlinks are, in essence, references."
The "Without More" Proviso
Hyperlinkers should take note of the "without more" proviso of the majority's decision as it applies to circumstances that could give rise to liability. The majority provides some guidance on what "without more" may mean. 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.
In addition, where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the defendant will be considered the publisher of those defamatory statements. The majority held that: "Individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory ... This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source. ..."
In their concurring judgment, Chief Justice McLachlin and Justice Fish proposed an "adoption or endorsement" test, holding that:
In sum, in our view, 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.
It is true that the traditional publication rule does not require the publisher to approve of the material published; he or she must merely communicate that material to a third party. However, the proposed adoption or endorsement standard for references is conceptually different. A mere reference without any adoption or endorsement remains that — a content neutral reference. Adoption or endorsement of the content accessible by a link in the text can be understood to actually incorporate the defamatory content into the text. Thus the content of the text comes to include the defamatory content accessed via hyperlink. The hyperlink, combined with the surrounding words and context, ceases to be a mere reference and the content to which it refers becomes part of the published text itself.
Given that the majority of the Court did not find publication where a hyperlinker "adopts or endorses" defamatory content in hyperlinked text, there is no liability if a hyperlinker adopts or endorses the linked site without repeating the defamatory statements or conveying a defamatory meaning through the words that adopt or endorse the linked site, e.g., "For the truth about Mr. X, click HERE." Nevertheless, hyperlinkers must be careful in how they word a Tweet, blog or any other primary article that includes a hyperlink to avoid falling into the "without more" proviso. As is always the case in defamation actions, the publication is considered in its entirety.
The Supreme Court of Canada's decision is clear — a hyperlinker is not liable for the mere creation of a hyperlink to a site that contains defamatory statements. However, a libel defendant subsequently posting hyperlinks to defamatory statements about a plaintiff will be evidence the plaintiff can rely upon to prove malice, as well as aggravated and punitive damages.
The Deliberate Act Test
In her concurring judgment, Justice Deschamps proposed the "deliberate act" test:
... In my view, the proper approach is (1) to explicitly recognize the requirement of a deliberate act as part of the Canadian common law publication rule, and (2) to continue developing the rule incrementally in order to circumscribe the manner in which a deliberate act must make defamatory information available if it is to result in a finding of publication.
More specifically, only where the plaintiff can establish on a balance of probabilities that the defendant performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form will the requirements of the first component of publication be satisfied. Of course, before the court will make a finding of publication, the plaintiff must also satisfy the requirements of the second component of publication on a balance of probabilities, namely, that the "defamatory matter [was] brought by the defendant or his agent to the knowledge and understanding of some person other than the plaintiff"
The majority of the Supreme Court rejected the deliberate act test because:
"... it avoids the formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources. Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation. ..."
The Internet is a Powerful Medium that Can Ruin Reputations
The majority decision emphasized that the Supreme Court of Canada does not resile from the importance of the protection of reputation and the harm that can be caused by Internet publications:
I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals' reputations are entitled to vigorous protection from defamatory comments. It is clear that "the right to free expression does not confer a licence to ruin reputations ... Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. ...
New activities on the Internet and the greater potential for anonymity amplify even further the ease with which a reputation can be harmed online:
But I am not persuaded that exposing mere hyperlinks to the traditional publication rule ultimately protects reputation.
A Victory for Freedom of Internet Expression
Once again, the Supreme Court of Canada has recognized the need to change the common law of defamation to accord with freedom of expression constitutionally guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. Notably, the Supreme Court of Canada recognized that the Internet is a different medium from print and broadcast.
What implications does the hyperlinks decision have for Internet service providers? Because an ISP plays a passive role in the content of Internet communication, it should not be liable for any defamatory statements published by its users. Likewise, it could be argued that Google and other search engines should not be liable for providing automatic search results that hyperlink to websites that contain the defamatory statements. This issue remains to be decided.
The Supreme Court of Canada's decision is a major victory for freedom of Internet expression. However, the majority cautioned that the Internet is an environment of evolving technologies:
I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. 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.
In other words, we have entered the new frontier of cyberlibel. The hyperlinks decision is the first of many cyberlibel cases the Courts will have to decide in the ever-changing, fast-paced world of Internet technologies.
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