• IP Monitor: Canadian Supreme Court Fails to Get Hyper About Hyperlinking to Defamatory Material
  • October 25, 2011
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • To succeed in an action for defamation, the plaintiff must prove on a balance of probabilities that the defamatory words were published, that is, that they were communicated to at least one person other than the plaintiff. In the recent decision in Crookes v. Newton, 2011 SCC 47, the Supreme Court of Canada was asked to consider the issue of whether hyperlinks that connect to allegedly defamatory material can be said to "publish" the material.

    In the case, the plaintiff brought a series of lawsuits against those he claimed were responsible for allegedly defamatory articles published on a number of websites. The defendant owns and operates a website in British Columbia containing commentary about various issues. One of the articles he posted on his website contained hyperlinks to other websites, which in turn contained information about the plaintiff. The plaintiff sued the defendant on the basis that two of the hyperlinks he created connected to defamatory material, and that those hyperlinks constituted "publication" of the defamatory statements.

    At trial, the plaintiff argued that by creating hyperlinks to the allegedly defamatory articles, or by refusing to remove those hyperlinks when asked to do so, the defendant himself became a publisher of the articles. The trial judge concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words. Therefore, there was no finding of publication for which the defendant could be held liable. The plaintiff appealed. The majority of the Court of Appeal agreed with the trial judge and held that reference to an article containing defamatory comments without repetition of the comments themselves is analogous to a footnote or card index in a library and should not be found to constitute republication of the defamation. A dissenting member of the Court of Appeal found that the context of the defendant’s article suggested that readers were in fact encouraged or invited to click on the links. In her view, there was publication.

    The Supreme Court of Canada dismissed the appeal. Abella J., writing for the majority, held that a hyperlink, by itself, should never be seen as "publication" of the content to which it refers. She reasoned that although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked. In her view, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. Subjecting hyperlinks to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. Importantly, however, Abella J. also held that "individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory." In her view, since a hyperlink, by itself, cannot amount to publication even if the hyperlink is followed and the defamatory content is accessed, the plaintiff's action against the defendant could not succeed. Abella J. expressly declined to comment on the use of embedded or automatic links since the issue of their use was not before the Court.

    As a result, care should be taken when using hyperlinks that connect to material which could be considered defamatory:

    • provide the link without commentary or direction;
    • do not repeat the material you have provided a link to;
    • be careful not to use graphics which could be taken to impliedly endorse or support the material linked to;
    • and avoid the use of embedded or automatic links in these circumstances since their use has not yet been sanctioned.