In Crookes v. Newton, the BC Court of Appeal
recently considered whether hyperlinking to another website or
article that contains defamatory material gives rise to liability
To succeed in a defamation action, the defendant must have
published (i.e., communicated) the actionable material to a third
party. In TLQ 4:4, we reported that the BC Supreme Court ruled
that merely hyperlinking to allegedly defamatory material on
another website does not amount to "publication" and
dismissed the action. The plaintiffs appealed that decision, and
the BC Court of Appeal largely upheld the lower court ruling.
The Court of Appeal ruled that the mere creation of a hyperlink
does not give rise to an automatic presumption of publication.
However, the court went on to state that hyperlinking could
constitute publication and give rise to liability for defamation in
some circumstances (e.g., inviting or actively encouraging viewers
to read the defamatory materials or adopting the defamatory
content). The judges disagreed on whether the words in the
defendant's article amounted to an invitation or approbation of
the allegedly defamatory content.
The majority of the Court of Appeal found that the plaintiff had
failed to prove that a reader of the defendant's site used the
hyperlink to visit the defamatory site. They refused to infer on
the basis of the level of traffic to the defendant's website
that any third party actually clicked on the link to view the
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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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