In a much anticipated decision relating to the scope of free expression on the Internet, the Supreme Court of Canada in Wayne Crookes, et al. v. Jon Newton, 2011 SCC 47, held that "a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers."
The case involved the defendant, Jon Newton, who posted an article on his Canadian-based website about free speech and the Internet. The article contained hyperlinks to articles on other websites, which were alleged to contain material defamatory to the plaintiff, Wayne Crookes.
Crookes sued Newton for defamation claiming that by creating the hyperlinks to the defamatory articles, Newton himself became a publisher of the articles, and that "when a hyperlink has been inserted on a webpage it should be presumed that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published."
The Trial Judge found that Newton was not liable for defamation, concluding that (a) hyperlinks were analogous to footnotes since they only refer to another source without repeating it, and since there was no repetition, there was no publication; and (b) although the evidence showed that Newton's article had been viewed 1,788 times, "the mere creation of a hyperlink in a website does not lead to the presumption that someone actually used the hyperlink to access the impugned words."
Crookes then appealed to the British Columbia Court of Appeal.
In its 2009 decision, the British Columbia Court of Appeal upheld the Trial Judge's decision, finding that "references to an article containing defamatory comments without repetition of the comments themselves is analogous to a footnote or card index in a library and should not be found to constitute republication of the defamation." The Court of Appeal also refused to accept that "the number of hits on the article itself was a sufficient basis for drawing an inference that a third party had read the defamatory words." The appeal was dismissed.
In its October 19, 2011 judgment, Justice Abella, writing for the majority of the Supreme Court of Canada concluded that "a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers."
After reviewing the Canadian law on defamation and two United States cases regarding references and defamation in particular, Justice Abella concluded that:
[A] reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communication is something very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.... Hyperlinks are, in essence, references ... [and because] ... a person who refers to other content generally does not participate in its creation or development [they cannot be found liable for "publishing" the defamatory information].
Justice Abella then went on to assess the issue from a public policy perspective stating that "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" and that "the potential 'chill' in how the Internet functions could be devastating."
On the other hand, Justice Abella recognized the potentially harmful impacts of defamatory speech on the Internet and that individuals are entitled to vigorously protect their reputations from defamatory comments. As such, Justice Abella formulated a test for when a hyperlink constitutes publication of defamatory matter to which it links, as follows:
- 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.
- Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. 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.
Applying this reasoning to the case at hand, Justice Abella dismissed the appeal on the basis that nothing on Newton's webpage was itself alleged to be defamatory.
In concurring opinion, Justice Fish and Justice McLachlin proposed that, rather than base publication on reproduction, "[p]ublication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text."
Justice Deschamps, however, was of the opinion that her colleagues had gone too far and proposed that, in order to reconcile freedom of expression with right to reputation, liability for defamation should only occur where "the plaintiff can establish on a balance of probabilities that [(a)] the defendant preformed a deliberate act that [(b)] made defamatory information readily available to a third party in a comprehensible form ... [and (c) that] the defamatory matter was brought by the defendant or his agent to the knowledge and understanding of some person other than the plaintiff." Nevertheless, Justice Deschamps concurred that the appeal should be dismissed.
It should be emphasized that the holding of the majority was that "a hyperlink, by itself, should never be seen as "publication" of the content to which it refers" [emphasis added]. Thus, operators of websites should not take from this decision that hyperlinking to defamatory material can be done with impunity in Canada. In an appropriate case, especially where the website operator adopts or endorses defamatory text that is hyperlinked, it seems clear that the balance between protection of reputation and freedom of expression will sometimes weigh against the website operator.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.