Article originally published in McCarthy Tétrault
Co-Counsel: Technology Law Quarterly on February 12, 2009
The B.C. Supreme Court recently ruled that merely hyperlinking
to defamatory material, without repeating the comments itself, does
not amount to publication. In Crookes v. Wikimedia
Foundation Inc., the court dismissed a defamation action
against an individual who had hyperlinked an article on his website
to alleged defamatory articles on other websites. The defendant
himself did not write or post any defamatory words on his website,
nor did he quote from the contentious articles.
To succeed in an action for defamation, plaintiffs must prove
publication. Under B.C. legislation, publication is presumed for
statements made in books or newspapers or broadcast to the public.
In this case, the plaintiffs argued that posting a hyperlink to a
website containing defamatory words constitutes publication of the
The judge found that there could not be a finding of publication
without proof that visitors to the defendant's website actually
followed the hyperlinks and read the defamatory statements on the
In deciding whether hyperlinking to defamatory material
constitutes publishing the defamation, the judge analogized between
hyperlinks and footnotes. Both direct the reader to further
material from other sources. Just as the inclusion of a footnote to
defamatory material does not constitute publication of the
defamatory material, the creation of a hyperlink does not
constitute re-publication of the content of the original site. The
mere fact that hyperlinks give immediate access to the other
material does not change the equation.
McCarthy Tétrault Notes:
The court's finding that the mere creation of a hyperlink in
a website does not lead to a presumption that persons read the
contents of the website and used the hyperlink to access the
defamatory words is an important one in the context of Internet
publication. Because the content of a site linked to your site by a
hyperlink can change, it is not practical to engage in constant
monitoring. Nevertheless, it continues to be good practice to
include a disclaimer when a website contains hyperlinks to other
The analogy to footnotes is also apt and demonstrates that the
courts do not have to invent an entirely new legal construct to
deal with issues on the Internet and that frequently existing legal
analysis will suffice.
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.
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