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 for defamation.
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 defamatory material.
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