Canada: Supreme Court Rules Hyperlinks Are Not Publications

Last Updated: February 28 2012
Article by Jacob Kaufman

In Crookes v Newton, the Supreme Court held that the creation of a hyperlink to allegedly defamatory material was not publication of that material.1 The decision may not apply in the province of Ontario or to so-called 'automatic' or 'frame' hyperlinks.

Facts

Wayne Crookes was a businessman who had been involved with the Green Party of Canada. Jon Newton was the owner and operator of a political website. Newton posted an article on his website entitled "Free Speech in Canada", which contained the following quote: "I've just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes." (The underlined words were hyperlinks.)

The first hyperlink led directly to the OpenPolitics.ca website. That site, in turn, linked to 10 articles, three of which Crookes believed to be defamatory. The second hyperlink connected directly to an article on USGovernetics.com that Crookes believed to be defamatory. Crookes demanded that Newton remove the hyperlinks; Newton refused to do so. Crookes commenced legal action for libel against Newton in the British Columbia Supreme Court.

Decision

The British Columbia Supreme Court and British Columbia Court of Appeal ruled in Newton's favour. Crookes appealed to the Supreme Court, which unanimously dismissed his appeal. While the court was unanimous in holding against Crookes, the panel of judges differed on the rationale for doing so. Justice Abella, writing for the majority, held that the creation of a hyperlink to allegedly defamatory material was not publication of that material. Chief Justice McLachlin and Justice Fish agreed with Abella, but stated that they would refine her test. Justice Deschamps stated that there should be no specific exemption for hyperlinks in defamation law, but that publication had not been proven on the particular facts of this case.

Justice Abella's reasons (writing for the majority)

Justice Abella stated that under the British Columbia Libel and Slander Act, there is a presumption of publication for the purposes of defamation in certain situations. Posting material on the Internet is not one of those situations and she would not create a new presumption of publication to that effect. In the past, any act that transferred defamatory material to another person constituted publication of defamation, regardless of intentions. A classic example of this was the 18th century UK case of R v Clerk, where a printer's servant whose only role was to 'clamp down' on the printing press was responsible for libel even though he was unaware of the content.2

The jurisprudence in this area evolved after the Charter of Rights and Freedoms was introduced. Abella noted that the approach to defamation law shifted from protecting reputation as a primary goal to seeing protection of freedom of speech as an equally important goal.

Abella held that there were strong differences between referencing and other acts of publication, as a distinction must be drawn between communicating that something exists or where it exists and actually communicating it. References do not exert control over the underlying content. This is especially problematic in the context of hyperlinks as the content at the other end of the link can be edited at any time.

Hyperlinks are essential to the open Internet, Abella held, as hyperlinks are the foundation of the Internet. Subjecting hyperlinks to the traditional publication rule "would be like trying to fit a square archaic peg into the hexagonal hole of modernity".3

Abella did not hold that the above meant that creating a hyperlink could never be publication. If a defendant used a reference that in itself conveyed defamatory meaning, a plaintiff could have a successful defamation action against a defendant.

Abella declined to comment on forms of hyperlinks that were not at issue in this particular case, including what she referred to as 'embedded' or 'automatic' links that actually project content from a secondary website onto the primary website. Therefore, given that Newton did not express anything defamatory on his page, Abella dismissed Crookes's appeal.

Chief Justice McLachlin's reasons (with Justice Fish)

The chief justice agreed with Abella that the appeal should be dismissed. However, the chief justice described the test differently. She stated that a hyperlink constitutes publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it linked to. The chief justice, therefore, would also dismiss Crookes's appeal.

Justice Deschamps's reasons

Justice Deschamps believed that there should be no specific exemption for hyperlinks in the context of the publication rules for defamation. Rather, the Supreme Court should enshrine the principle that defamation must be deliberate and make incremental changes from there.

Deschamps wrote that Abella's reasons exaggerated the difference between hyperlinks and traditional references. It is far easier for a user to obtain allegedly defamatory material by clicking on a hyperlink than to obtain the material independently after reading a reference. Although Abella's reasons claim that freedom of expression must be balanced with reputational protection, her ruling in fact swings the pendulum too far towards freedom of expression.

Regarding the fact that the content on the other side of a hyperlink can be edited at any time, Deschamps stated that the same defence of innocent dissemination which is available for book stores and libraries applies. This defence applies where a website is altered to contain allegedly defamatory material until the moment that the creator of the hyperlink becomes aware that he or she is linking to allegedly defamatory information. Creators of hyperlinks also have access to the other defamation defences, such as the defence of fair comment and responsible communication on matters of public interest.

Deschamps concurred with Abella that, as there is no presumption of publication for material posted on the Internet in the British Columbia Libel and Slander Act, it is necessary to prove publication. 'Publication' is defined as an act that makes defamatory information available to a third party and receipt of the information by a third party in a way that is understood. In this case, there was no evidence regarding how many people - if any - read the allegedly defamatory material or whether they accessed it through the hyperlinks. There is no evidence about how users respond to hyperlinks. As there was no proof that any individual actually accessed allegedly defamatory material from a hyperlink posted by Newton, Deschamps would dismiss Crookes's appeal.

Comment

Several areas have been left open by Crookes v Newton. The decision applied to the definition of 'publication' in the context of defamation and not necessarily in other contexts. It is therefore an open question whether this decision will have an impact on the definition of 'publication' under the Copyright Act.4

While Crookes v Newton is definitely binding law in British Columbia, it may not be applicable in Ontario. The reasoning of both Abella and Deschamps relied on the fact that there is no presumption of publication for material posted on the Internet under the British Columbia Libel and Slander Act. The Ontario Libel and Slander Act has a similar, but more expansive, set of presumptions.

The relevant provisions of the British Columbia Libel and Slander Act are as follows:

"1. In this Act 'broadcasting' means the dissemination of writing, signs, signals, pictures, sounds or intelligence of any nature intended for direct reception by, or which is available on subscription to, the general public (a) by means of a device utilizing electromagnetic waves of frequencies lower than 3 000 GHz propagated in space without artificial guide, or (b) through a community antenna television system operated by a person licensed under the Broadcasting Act (Canada) to carry on a broadcasting receiving undertaking, and 'broadcast' has a corresponding meaning...

2. Defamatory words in a broadcast are deemed to be published and to constitute libel."5

The relevant provisions of the Ontario Libel and Slander Act are as follows:

"1. In this Act 'broadcasting' means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of, (a) any form of wireless radio-electric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or (b) cables, wires, fibre-optic linkages or laser beams, and 'broadcast' has a corresponding meaning...

2. Defamatory words in...a broadcast shall be deemed to be published and to constitute libel."6

If the definition of 'broadcasting' in the Ontario Libel and Slander Act is broad enough to encompass a presumption of publication for material posted on the Internet, then it is possible that the bright-line rule that hyperlinks never constitute publication would not apply in Ontario.

Ottawa-Carleton District School Board v Scharf held obiter that material posted on the Internet was not a broadcast.7 By contrast, multiple decisions by Ontario courts acknowledged it is an open issue whether material posted on the Internet should be deemed to be published under the Ontario Libel and Slander Act.8

Since the decision in Crookes v Newton, two Ontario cases considering that decision have been released. In Elfarnawani v International Olympic Committee, Justice Campbell held that:

"Under the Libel and Slander Act, R.S.O. 1990, chap. L.12, defamatory words in a newspaper or in a broadcast are "deemed to be published". However, as the Supreme Court of Canada recently observed in Crookes v Newton, at para. 14, there is "no such presumption in relation to material published on the Internet"."9

This observation by the Supreme Court, however, stated the law regarding the British Columbia Libel and Slander Act. As such, it begs the question whether to assume that this observation by the Supreme Court applies to the Ontario Libel and Slander Act.

In Shtaif v Toronto Life Publishing Co Ltd, Justice Matlow held that material posted on the Internet was not a broadcast for the purposes of the Ontario Libel and Slander Act. No evidence had been presented that a website's content had been "received by the public directly" or through "relay stations" as provided for under the Ontario Libel and Slander Act.10 If expert evidence had been called on this point, it may have indicated that relay stations (known as routers) exist in the Internet's infrastructure.

As such, despite these rulings, it appears that it is still an open question whether material posted on the Internet is 'broadcast' pursuant to the Ontario Libel and Slander Act and is therefore deemed to be published. The policy rationales articulated by Abella regarding the open Internet, however, would mitigate towards courts maintaining the protection of those who hyperlink to allegedly defamatory material.

Finally, hyperlinks that project content on the page automatically, or in a separate frame, with little or no prompting from the reader were expressly not addressed in the decision. As such, it is possible that one of these forms of hyperlink to allegedly defamatory material could constitute publication of that material. When structuring websites, it would therefore be best practice to avoid using these types of hyperlink.

Footnotes

1. 2011 SCC 47.

2. (1728), 1 Barn KB 304.

3. Crookes v Newton, supra note 1, para 36.

4. Copyright Act, RSC 1985, c C-42.

5. Libel and Slander Act, RSBC 1996, c 263, ss 1-2.

6. Libel and Slander Act, RSO 1990, c L12, ss 1-2.

7. Ottawa-Carleton District School Board v Scharf, 2007 CanLII 31571 (ON SCJ), para

8. Bahlieda v Santa, 2003 CanLII 2883 (ON CA) rev'g 2003 CanLII 12856 (ON SCJ); TPG Technology Consulting Ltd v Canada (Minister of Industry and Competition Bureau), 2011 ONSC 4604 (CanLII); Weiss v Sawyer, 2002 CanLII 45064 (ON CA); Warman v Grosvenor, 2008 CanLII 57728 (ON SCJ).

9. Elfarnawani v International Olympic Committee, 2011 ONSC 6784 (CanLII), para 34.

10. Shtaif v Toronto Life Publishing Co Ltd, 2011 ONSC 6732 (CanLII), para 19.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com

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.

Authors
Events from this Firm
23 Oct 2018, Other, Toronto, Canada

Dentons and SheEO are coming together for an evening of #radicalgenerosity on October 23, 2017. Meet Vicki Saunders, Founder of SheEO, and learn about how SheEO is changing the landscape for female entrepreneurs.

23 Oct 2018, Seminar, Montreal, Canada

Dentons is pleased to invite you to join us for a breakfast seminar as part of the Les Matinées Dentons series on issues relevant to you and your business.

24 Oct 2018, Other, Toronto, Canada

If you build it, claims may come. Join the Dentons Construction group for breakfast and an informative discussion on current topics in construction law.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions