The Supreme Court of Canada has advanced both defamation law and Internet law in its recent decision in Crookes v Newton,1 released on October 19, 2011. The court, by a majority of six judges, held that a person cannot defame someone merely by publishing a hyperlink to a third party's website or document containing defamatory material: "... a hyperlink by itself, should never be seen as a 'publication' of the content to which it refers."2 "Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content."3
The majority compares hyperlinks to footnoted references in a paper document. Even though hyperlinks, unlike footnotes, offer immediate access to the third-party sites to which they refer, readers know that in following the link they are being referred to a different source. The majority expressly refrains from deciding whether the conclusion should be different in the case of embedded or automatic hyperlinks.
Rebalancing protection of reputation and freedom of expression
Under previous defamation case law, a hyperlinker who unwittingly linked to defamatory material could raise a defence of "innocent dissemination," as well as other standard defamation defences. However, following Crookes a mere hyperlink is not publication and therefore no defence is required.
The majority holds that hyperlinkers can attract liability only if they actually present content from the hyperlinked material in a way that repeats the defamatory content, or if they use a reference in a way that, in itself, conveys defamatory meaning. This is presented as a further step in the development of defamation law in which the recent trend in Canada has been toward limiting what constitutes "publication." According to the majority, this reflects the court's greater recognition, post-Charter, of a need to balance protection of an individual's reputation with the public's interest in protecting freedom of expression.
The majority decision appears to be driven by a concern over a possible chilling effect on the functioning of the Internet should mere hyperlinking expose the hyperlinker to liability for defamatory content of material over which the hyperlinker has no control. In a revealing paragraph, Abella J. writes:
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.4
Proliferating online defamation
The decision significantly reduces the risk of someone being held liable for defamation by linking to a site found to contain defamatory material. However, from the perspective of parties being defamed, this decision is likely to make it more difficult to put an end to the proliferation of defamatory statements and to seek redress for defamation. A person who has been defamed may, of course, take action against the author/publisher of the defamatory material. However, it is not unusual for defamatory material to be posted anonymously, in practice making legal redress against the author difficult or impossible. As well, a defamatory posting may initially have very limited reach, but that reach can be greatly amplified through hyperlinking from other sites. Under the majority decision, a defamed party would have no right of action against the hyperlinkers even if the latter are fully cognizant of the defamatory content of the posting to which they have linked.
The majority prefers the apparent certainty offered by a clear rule over the greater uncertainty inherent in either of the approaches proposed in the two concurring opinions. Both those opinions would require a court to inquire into the intentions of hyperlinkers, determined on the facts of the case.
It remains to be seen whether the line drawn by the majority is as clear as may initially appear and whether the equities of future cases may yet force a more nuanced test. For example, the majority in Crookes leaves open the possibility that its holding might not apply to automatic links which operate without the intervention of the reader. Yet it may ultimately prove difficult to justify a radically different result, or at least test, based on whether a reader has clicked on a link or not.
Interestingly, Crookes does not at all address the issue of quantum of damages in a successful defamation suit. How will future courts deal with a situation in which a person is successfully sued for defamation based on a posting intended for a very select audience but in which the posting unexpectedly ends up being widely viewed through numerous third-party links? Will the author be liable for all the consequences of a posting that unexpectedly "goes viral"? Will all those who knowingly link to the posting escape liability despite their deliberate acts in making the defamatory material widely known? In such cases, courts may feel inclined to prefer the concurring opinion of the two judges who would allow a finding of liability where the creation of a hyperlink, understood in its context, constitutes an adoption or endorsement of the defamatory material to which it links.
It also remains to be seen what influence Crookes exerts in other, arguably analogous, areas. For example, it has previously been held that it is a violation of a publication ban to distribute a hyperlink to a website publishing banned matter.5 In the future, will courts apply Crookes and arrive at a different conclusion, or will they limit Crookes to defamation cases despite the seemingly similar issues that arise?
In short, rather than definitively settling the issue of hyperlinks and defamation, Crookes will likely generate a new set of questions and spawn new litigation.
Finally, this decision demonstrates the flexibility the court brings to the analysis of the legal significance of hyperlinks, responding to the context and legal issues at stake. For example, in Dell Computer Corp. v Union des consommateurs,6 the court considered whether terms and conditions available online through a hyperlink should be considered part of the original document or as "an external clause" within the meaning of Quebec's Civil Code. The court held that a readily visible hyperlink to terms and conditions can make the latter sufficiently available to the reader that they are considered part of the original document. The court remarked that there is "no real distinction between scrolling through a document and using a hyperlink." The difference in the treatment of hyperlinks in Dell and Crookes is a function of the difference in context and the legal issues at play. We expect that future decisions will continue to draw distinctions adapted to the context and issues at stake, rather than applying any theory specific to hyperlinks.
1 Crookes v. Newton, 2011 SCC 47
2 Crookes, supra, para. 14
3 Crookes, supra, para. 42. Abella, J. wrote the majority decision on behalf of six justices. McLachlin C.J. and Fish J. agreed with the majority that a mere general reference to a defamatory website is not enough to constitute publication of the defamation. However, they consider that there might be publication if, analyzed in its context, the use of a hyperlink constitutes adoption or endorsement by the hyperlinker of the defamatory content to which it links. Deschamps J., concurring in the result, held open the possibility of finding "publication" of defamatory material where the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form.
4 Crookes, supra, para. 36
5 Toronto Airport Christian Fellowship v. Kambulow,  O.J. No. 1476 (Ont. Sup. Ct. J.)
6 Dell Computer Corp. v. Union des consommateurs,  2 S.C.R. 801
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