Do you regularly use hyperlinks on your Internet sites or blogs to refer your visitors to external content? The recent decision rendered by the Supreme Court of Canada in the Crookes v. Newton case may protect you against a liability that you probably didn't know existed.
On October 19, 2011, the highest court in the country ruled that referring readers of an article, blog or other written matters on the Internet to another site that contains defamatory comments, by means of a hyperlink, does not constitute defamation unless the defamatory comments are presented or repeated, or the creator of the hyperlink adopts ou endorses the content it refers to.
The main facts of the case were as follows: Mr. Newton owned and operated an Internet site in British Columbia containing various articles on different subjects, some of which dealt with freedom of expression in the context of the Internet. One of these articles contained hyperlinks referring readers to a site that presented alledgedly defamatory comments about Mr. Crookes, who sued Mr. Newton on the basis that he had published the defamatory comments in question.
In the context of an action for defamation, the plaintiff must prove that the defendant has published, by any act, defamatory comments to at least one person, who received them. As referring to content by means of a hyperlink constitutes "any act", and generally at least one person clicks on the hyperlink, the principal issue that the Supreme Court of Canada had to look into was whether the incorporation in a text of hyperlinks leading to defamatory comments was tantamount to the "publication" of those comments.
In this instance, the Court determined that the hyperlinks were, in essence, references, similar to footnotes in a traditional text, and that these references indicated the existence of information but did not themselves communicate the content. Furthermore, a person who creates a hyperlink does not control the content found on the site to which he refers, which may be modified at any time, and it is the operator of that site who initially makes the defamatory comments available to the public and publishes them, not the person who creates the hyperlink. The person who creates the hyperlink and refers to external content does not participate in either the creation or the development of that content. Lastly, the Court considered that applying the traditional rule in defamation matters to hyperlinks would have the effect of creating a presumption of liability against everyone who creates hyperlinks, and that this would seriously restrict the flow of information on the Internet and, as a result, freedom of expression. For all of these reasons, the Supreme Court of Canada agreed with Mr. Newton and concluded that he had not published the defamatory comments in question.
Hyperlinks constitute an important part of what the Internet represents and are an essential element of the way it works. They enable one to connect different pages and create a veritable "web". If the Supreme Court of Canada had decided this case in favour of Mr. Crookes, it would have risked impairing the system on which the Internet is based, in addition to exposing authors acting in good faith to significant risks and discouraging them from publishing content, and thus restricting freedom of expression and the flow of information. Imagine if every author was obliged to constantly check the content of sites to which his hyperlinks refer to make sure he is not exposing himself to lawsuits.
It is also important to note that the Court did not make any distinctions in its decision between "shallow" hyperlinks, which generally take the reader to the main page of an Internet site without taking him directly to the problematic content, and "deep" hyperlinks, which take the reader directly to that content.
A lesson that can be drawn from this decision of the Supreme Court of Canada is that applying the traditional rules of law to the technological and evolving context of the Internet does not always result in a logical and desirable conclusion. The law is sometimes poorly equipped to tackle modern reality and therefore must often adjust to it. Also, one senses in the decision an intention to favour and encourage use of the Internet to publish information. Lastly, in this particular case, freedom of expression, which in the opinion of the Court plays a fundamental role in the evolution of democratic institutions and values, carried more weight than the right to protect one's reputation. However, the exercise of determining the balance between the two is one that must be constantly repeated and depends on the particular facts of each case.
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