the weakest link: Supreme Court of Canada rules against defamation by hyperlink
Internet bloggers and advocates of freedom of expression have reason to celebrate the Supreme Court of Canada's decision in Crookes v. Newton, 2011 SCC 47, which held that merely hyperlinking to defamatory material online, without more, does not constitute publication of that content.1 The ruling should also come as welcome relief to any company that posts links on its website to external sources, over the content of which it has no control. In a decision that otherwise had the potential to create a chilling effect on the flow of information online, the Supreme Court of Canada has now provided immunity to those who simply link to other, potentially defamatory, websites.
The defendant, Jon Newton, owns and operates a website out of British Columbia that comments, amongst other things, on free speech and the internet. In one posting, the defendant hyperlinked to articles that contained material relating to the plaintiff, Wayne Crookes, and the Green Party of Canada. The plaintiff, claiming that the materials constituted a smear campaign, originally requested that the defendant voluntarily remove the hyperlinks in question. When the defendant refused, the plaintiff launched suit, alleging that hyperlinking to the defamatory content constituted publication of such material.
The trial court and the British Columbia Court of Appeal both found in favour of the defendant and dismissed the claim. The plaintiff appealed to the Supreme Court of Canada on a single question of law: does hyperlinking to defamatory material online constitute publication of that material?
the traditional rule of publication
The legal definition of "publication" has traditionally been very broad. A plaintiff is only required to establish that the defendant has, by any act, conveyed defamatory material to a third party. There are no limitations on the type of acts which may constitute publication and any act which has the effect of transferring the defamatory material to a third party has been held to be sufficient.
The plaintiff argued that hyperlinking to defamatory material met this standard.
hyperlinking does not constitute publication
The majority of the Supreme Court of Canada explicitly rejected a formalistic application of the traditional publication rule, concluding that "a hyperlink, by itself, should never be seen as publication of the content to which it refers."
The majority's decision, written by Justice Abella, focused on the difference between references (such as a hyperlink or a footnote) and other forms of publication. The majority held that merely communicating that something exists (or even where it exists) is fundamentally different from communication of the defamatory content itself. A hyperlink is content-neutral; it expresses no opinion.
Justice Abella also highlighted the reality that hyperlinkers rarely have control over the content of the material to which they link. A website that contained no objectionable material one day, may contain a litany of defamatory content the next.
Further, the majority held that subjecting hyperlinks to the traditional publication rule would significantly restrict the flow of information online. The internet cannot be effectively navigated without hyperlinks – according to Justice Abella, they are "indispensible" – and online authors will be reluctant to risk liability merely for linking to another article over whose changeable content they have no control. Excluding hyperlinks from the scope of the traditional publication rule better accords with the principles of freedom of expression and recent developments in communications technology.
a minor qualification
At the end of her decision, Justice Abella provided one caveat of which hyperlinkers should take notice. A hyperlink may attract liability for publication of defamation if it is presented in a way that actually repeats the defamatory content. However, the decision makes clear that liability in such circumstances does not arise from the fact that a hyperlink has been created, but because, understood in context, something defamatory has actually been expressed. In other words, the hyperlink no longer remains content-neutral.
In separate decisions, three judges concurred with the majority's result but disagreed with their analysis. In a lengthy judgment, Justice Deschamps criticized the bright-line rule adopted by the majority in favour of a more nuanced approach that incrementally advances the law of defamation without the need to carve out a blanket exception for hyperlinks. In a third decision, Chief Justice McLachlin and Justice Fish substantially agreed with the majority, but rejected the idea that actual "repetition" of the defamatory content was a necessary precondition to a finding of liability for publication. They proposed that it would be sufficient if the hyperlinked text indicated "adoption or endorsement" of the defamatory material.
There is no question that this decision will be met with a sigh of relief by individuals and companies who hyperlink to third party websites. That said, pitfalls with hyperlinking remain. The Supreme Court made it clear that liability for defamation may arise if the hyperlinks are not presented in a content-neutral manner. While it is clear that explicitly repeating defamatory content will expose the hyperlinker to a potential lawsuit, the boundaries of what constitutes "content-neutral" will still need to be sorted out by lower courts. The Supreme Court also refused to address the ramifications of new technologies (such as automated links that open without the need for a user-initiated "click"), which will need to be addressed in inevitable future disputes.
Another decision dealing with internet defamation is expected from the Supreme Court of Canada shortly, when the Court releases its judgment in the Conrad Black libel case (click here for details). We will provide an update once that decision is released.
by Hilary Clarke and Richard McCluskey
1 The irony of providing a hyperlink to the text of a Supreme Court of Canada decision addressing the legal ramifications of hyperlinking is not lost on these authors.
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a cautionary note
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2011