Now that traditionally print and television-based publications are being published on the internet, courts are being asked to apply defamation law to internet publications. The unique structure of the internet as a medium raises interesting questions about the application of defamation law. One such question is whether posting a hyperlink to defamatory material constitutes defamation. In this context, the law is now clear: the Supreme Court of Canada has quite emphatically said "no", a content-neutral hyperlinking to defamatory material, without any affirmation of the defamatory words, does not constitute defamation.
Traditionally, "publishing" defamatory words has been defined as any act that "has the effect of transferring the defamatory information to a third person". It would be reasonable to think that hyperlinks serve this function and therefore constitute an act of "publishing". However, in Crookes v Newton, the Supreme Court declined to strictly apply that definition, instead likening hyperlinks to references. According to the Supreme Court, they communicate that something exists but not the content within. In other words, a hyperlink is "content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers". Merely providing access to content that you do not control does not constitute a "publication". The Supreme Court therefore found that, on the facts of that case, the hyperlink could not be defamatory.
The Supreme Court did, however, qualify its decision by stating that in certain circumstances a hyperlink could be defamatory. If the manner in which a hyperlink refers to defamatory material is itself defamatory, the publisher may still face liability. This might occur where, for instance, the individual publishing a hyperlink endorses, affirms or repeats the defamatory material to be found in the hyperlinked website.
Internet users should therefore pay attention to the manner in which they post hyperlinks. Conversely, if you are considering an action for defamation, it would be prudent to consider whether you also have a cause of action against individuals who hyperlinked to the allegedly defamatory information.
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