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.


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 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 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 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.


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.


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.


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:

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.