Canada: All Hyperlinking Is Not "Fair Game": A Look At Crookes v. Newton

Last Updated: April 2 2012
Article by Michael Smith

Most Read Contributor in Canada, September 2016

Edited by Keith Batten

Generally, someone is prima facie liable for defamation when they publish to a third party who understands them, words concerning the plaintiff that have a tendency to lower the reputation of the plaintiff in society. The onus then shifts to the defendant to establish one of the defences, such as justification (truth), fair comment (opinion), responsible communication on matters of public interest, etc. From the perspective of defamation liability risk, the internet and social media are very dangerous places.

In Crookes v. Newton, released on October 19, 2011, the Supreme Court of Canada considered for the first time in the 16 years since the internet first became widely available, whether or not the act of creating a hyperlink from one website to another website containing defamatory information, constituted 'publication' and made the hyperlinker liable along with the author of the defamatory website.

The traditional "publication rule" was that any act that had the effect of transferring the defamatory information to a third party constituted 'publication' and fulfilled the publication element of the tort of defamation. This could be done verbally, in writing, by "dramatic pantomime", or otherwise – any act. The range of conduct that could constitute publication was historically quite vast. Anyone who repeated and published the defamatory information was jointly liable for defamation with the original author, just by passing it on.

In a progressive decision, Justice Abella, writing for the majority of the Supreme Court of Canada, held that "[s]trict application of the publication rule in these circumstances [hyperlinking on the internet] would be like trying to fit a square archaic peg into the hexagonal hole of modernity." The majority concluded that a "shallow" or "deep" hyperlink, by itself, does not constitute publication and that the hyperlinker is not liable for linking to defamatory content. However, this does not mean that all hyperlinking is "fair game" and will never effect liability or damages.

The majority went on to hold that a hyperlinker will still be liable for defamation:

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 ... This might be found to occur, for example, where a person places a reference [the hyperlink] in a text that repeats defamatory content from a secondary source ... 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. [Emphasis in original]

This means that hyperlinkers still have to be concerned with the context in which the hyperlink is made. The hyperlink alone will not attract liability, but, combined with the words surrounding it, it might.

Had it not been for the dissenting decision of Chief Justice McLachlin and Justice Fish, it would be open to conclude that a hyperlinker's express adoption or endorsement of defamatory hyperlinked-to material could be "presenting content from the hyperlinked material in a way that actually repeats the defamatory content", conduct that the majority said would attract liability. However, Chief Justice McLachlin and Justice Fish found themselves in dissent precisely because that was their view:

the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of the defamatory statement via hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. [Emphasis in original]

A distinction is therefore made between the adoption or endorsement of the defamatory material and repeating it. This indicates that the majority was speaking about conduct even closer to a literal repetition of the linked-to material before publication and liability will be established. It is notable that the Supreme Court only considered "shallow" or "deep" hyperlinks, which require the user to actively click on the hyperlink in order to access the linked website.

The court was clear that it was leaving for future consideration the same issues as they relate to evolving technology such as automatic hyperlinks; links that automatically display other content with little or no action by the user. It appears that the more automatic the display of the linked information, the closer one comes to publication. At least until the issue is considered in future cases, there is still liability risk associated with the use of automatic hyperlinks and the like.

Hyperlinking will not by itself create liability, but it is still likely relevant to important issues like malice and damages. A finding of malice on the part of the defendant defeats several defamation defences. Plaintiffs will likely argue that a defendant's hyperlinking to other defamatory postings is evidence that s/he was acting maliciously. A defendant who is found liable and who has hyperlinked to other defamatory postings may find the damages awarded against him or her increased as a result.

There is danger in only reading a 140 character 'tweet' about this decision. It cannot be said that all hyperlinking is "fair game". The context in which a hyperlink is made may still attract liability. The Supreme Court has not yet addressed automatic links, "popups", and similar technology. And hyperlinks may still get a defendant into trouble by evidencing malice or having the effect of increasing a damages award.

About BLG

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.