Do you regularly use hyperlinks on your Internet sites or blogs
to refer your visitors to external content? The recent decision
rendered by the Supreme Court of Canada in the Crookes v. Newton
case may protect you against a liability that you probably
didn't know existed.
On October 19, 2011, the highest court in the country ruled that
referring readers of an article, blog or other written matters on
the Internet to another site that contains defamatory comments, by
means of a hyperlink, does not constitute defamation unless the
defamatory comments are presented or repeated, or the creator of
the hyperlink adopts ou endorses the content it refers to.
The main facts of the case were as follows: Mr. Newton owned and
operated an Internet site in British Columbia containing various
articles on different subjects, some of which dealt with freedom of
expression in the context of the Internet. One of these articles
contained hyperlinks referring readers to a site that presented
alledgedly defamatory comments about Mr. Crookes, who sued Mr.
Newton on the basis that he had published the defamatory comments
In the context of an action for defamation, the plaintiff must
prove that the defendant has published, by any act, defamatory
comments to at least one person, who received them. As referring to
content by means of a hyperlink constitutes "any act",
and generally at least one person clicks on the hyperlink, the
principal issue that the Supreme Court of Canada had to look into
was whether the incorporation in a text of hyperlinks leading to
defamatory comments was tantamount to the "publication"
of those comments.
In this instance, the Court determined that the hyperlinks were,
in essence, references, similar to footnotes in a traditional text,
and that these references indicated the existence of information
but did not themselves communicate the content. Furthermore, a
person who creates a hyperlink does not control the content found
on the site to which he refers, which may be modified at any time,
and it is the operator of that site who initially makes the
defamatory comments available to the public and publishes them, not
the person who creates the hyperlink. The person who creates the
hyperlink and refers to external content does not participate in
either the creation or the development of that content. Lastly, the
Court considered that applying the traditional rule in defamation
matters to hyperlinks would have the effect of creating a
presumption of liability against everyone who creates hyperlinks,
and that this would seriously restrict the flow of information on
the Internet and, as a result, freedom of expression. For all of
these reasons, the Supreme Court of Canada agreed with Mr. Newton
and concluded that he had not published the defamatory comments in
Hyperlinks constitute an important part of what the Internet
represents and are an essential element of the way it works. They
enable one to connect different pages and create a veritable
"web". If the Supreme Court of Canada had decided this
case in favour of Mr. Crookes, it would have risked impairing the
system on which the Internet is based, in addition to exposing
authors acting in good faith to significant risks and discouraging
them from publishing content, and thus restricting freedom of
expression and the flow of information. Imagine if every author was
obliged to constantly check the content of sites to which his
hyperlinks refer to make sure he is not exposing himself to
It is also important to note that the Court did not make any
distinctions in its decision between "shallow"
hyperlinks, which generally take the reader to the main page of an
Internet site without taking him directly to the problematic
content, and "deep" hyperlinks, which take the reader
directly to that content.
A lesson that can be drawn from this decision of the Supreme
Court of Canada is that applying the traditional rules of law to
the technological and evolving context of the Internet does not
always result in a logical and desirable conclusion. The law is
sometimes poorly equipped to tackle modern reality and therefore
must often adjust to it. Also, one senses in the decision an
intention to favour and encourage use of the Internet to publish
information. Lastly, in this particular case, freedom of
expression, which in the opinion of the Court plays a fundamental
role in the evolution of democratic institutions and values,
carried more weight than the right to protect one's reputation.
However, the exercise of determining the balance between the two is
one that must be constantly repeated and depends on the particular
facts of each case.
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.
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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).