Canada: More Protection From Defamation Liability For Website Owners

The Supreme Court of Canada has just issued a judgment on the increasingly important issue of Internet defamation, in an appeal from a decision discussed in Dispute Resolution's Winter 2010 edition. The decision is vital to every person and business that publishes material on the Internet or operates a website.

The judgment is good news to everyone who uses the Internet, confirming that just posting a hyperlink does not make a website owner or author liable for publishing defamatory material found on the hyperlinked website. 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", leading to potential liability.

Almost everyone who plays a role in writing, publishing or distributing a defamatory article may be found liable for defamation. It is not generally a defence that you're only repeating what another person originally said.

The plaintiff in a defamation lawsuit must prove, among other things, that the defendant "published" the defamatory words. When the offending words are directly placed or quoted in a newspaper or on a website, publication is obvious. But what if the website does not directly publish the offending words, just provides a hyperlink to another website? The Supreme Court of Canada concluded that a reference to the existence or location of defamatory content by hyperlink, without more, is not "publication" of that content, and therefore the hyperlinker cannot be found liable.

However, individuals may be liable for hyperlinking if the way they refer to content conveys defamatory meaning or shows they have adopted the defamatory statement as their own. The Supreme Court added that this can occur when the hyperlinker repeats defamatory content from a secondary source.

The following are hypothetical examples:

Likely publication and potential liability:

  • "Click here to learn the truth about Mr. Smith's history of fraud and corruption."
  • "As discussed in more detail in this article: "Mr. Smith is fraudulent and corrupt".

Unlikely publication:

  • "As shown here, Mr. Smith's business practices have been the subject of some (unproven) criticism and litigation."
  • "Some have said that Mr. Smith is corrupt: hyperlink"
  • "For more information on Mr. Smith's business practice, we invite you to follow this interesting hyperlink to Jane's blog."
  • "Mr. Smith's restaurant is one of the best in Vancouver according to this website" [website contains link to a defamatory article about Mr. Smith's business practices]

Note that in this case one of the hyperlinks was a "shallow" hyperlink, which takes the reader to a webpage where articles are posted. Another was a "deep" hyperlink, which takes the reader directly to an article. Both shallow and deep hyperlinks require the reader to click on the link to be taken to the content, and both are captured by the principle set out by the Supreme Court.

This case did not, however, deal with embedded or automatic hyperlinks, which automatically display the content of another publication when you scroll over them. These types of hyperlinks may not be captured by the same principle, and could potentially make the hyperlinker liable for the contents of the defamatory publication they reference.

The plaintiff in a defamation action must also prove that the offending material was received and read by someone. This is also fundamental to whether it is appropriate to sue in a given jurisdiction. A plaintiff suing for defamation in British Columbia must prove that at least one person in British Columbia read the offending material.

In this case the article providing the hyperlinks had been accessed a total of 1,788 times. But it was not clear whether anyone accessing the article had actually clicked on the hyperlinks to the offending material. It was not clear how many of these hits came from independent or repeat visits. It was not clear how many came from humans or from information-gathering Internet "robot" software. Nor was it clear whether any of the readers were in British Columbia.

In those circumstances, the Court of Appeal for British Columbia had found that the bald fact that there was a certain number of hits on the website article did not prove that anyone had actually clicked the hyperlink and read the defamatory article. The Supreme Court of Canada did not overturn this finding, and one of its judges endorsed it. So the plaintiff failed to prove that anyone in British Columbia had read the article, and the British Columbia courts had no jurisdiction to hear the case.

This decision provides useful guidance for Internet participants, and rules out the possibility that the simple act of hyperlinking is publication. But it also confirms that each case will turn on its own facts, including the wording and tone of, and placement of the introduction to, the hyperlink, about whether the manner in which content is referred to conveys defamatory meaning. A website owner or manager would be wise to seek legal advice before hyperlinking to a potentially defamatory website. Otherwise they risk a finding of publication and liability, just as if they were the author of the offending material.

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