Libel and Slander – Hyperlinks –
Publication – Innocent Dissemination
Newton owned and operated a website containing commentary about
various issues, including free speech and the Internet. He posted
an article on his website called "Free Speech in Canada".
The article contained several hyperlinks to other websites.
Crookes argued that two of the hyperlinks connected to
defamatory material. One link was a "shallow" hyperlink,
which directed the reader to a home page that contained allegedly
defamatory articles. The other link was a "deep"
hyperlink that connected the reader to a specific article which
Crookes alleged was defamatory.
Crookes demanded that Newton remove the article containing the
hyperlinks from his website. Newton refused. Crookes then brought
an action against Newton in defamation. The article containing the
hyperlinks had been accessed 1,788 times. However, there was no
evidence with respect to how many times the hyperlinks had been
accessed, if at all.
At issue was whether a hyperlink constituted
"publication" for the purposes of defamation law. Justice
Abella, writing for the majority of the Court, found that it did
not. She reasoned that reference to an article containing a
defamatory comment without repetition of the comment itself should
not be found to be publication or republication of the defamatory
comment. Justice Abella found that making reference to the
existence or location of content by hyperlink or otherwise, without
more, is not publication of the content.
Justice Abella concluded that a hyperlink, by itself, should
never be seen as publication of the content to which it refers.
Therefore, the hyperlinks created by Newton were not
Chief Justice McLachlin and Fish J. wrote separate reasons
concurring in the result. They parted with Abella J. on the blanket
statement that hyperlinks could never be defamatory. They reasoned
that if the text surrounding the hyperlink indicates adoption or
endorsement of the content of the hyperlinked text, it may be
Justice Deschamps wrote separate reasons that ultimately
concurred in the result with her colleagues, although she differed
significantly in her reasoning. She found that creating a hyperlink
could be defamatory if it made defamatory information readily
available to a third party in a comprehensible form. Justice
Deschamps also referred to the defence of innocent dissemination as
an existing mechanism to protect freedom of expression.
On the facts of the case, Deschamps J. was not willing to find
that the "shallow" hyperlink was enough to make the
defamatory material readily available. However, she found that the
"deep" hyperlink, which linked directly to the allegedly
defamatory article, satisfied the condition of publication. She
found that the action could not succeed, however, because there was
no evidence that a third party had accessed this hyperlink, and she
was unwilling to draw an inference that a third party had done
Ultimately, the justices were unanimous in opining that the
action by Crookes could not succeed. The appeal was dismissed.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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.
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).