1. Crookes v. Newton[i] – Does Hyperlinking constitute Defamation?
A majority of the Supreme Court of Canada upheld judgements of the lower courts in British Columbia to rule that the mere act of providing a hyperlink on the internet did not constitute defamation.
The SCC said that a “hyperlink” is a device routinely used in articles on the internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information. Clicking on the hyperlink connects the reader to that information. The court characterized the legal issue as whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material.
In this case, the plaintiff sued the defendant for placing hyperlinks on his website which linked to other websites which the plaintiff alleges contained defamatory information about the plaintiff. The plaintiff asserted that the defendant, by placing those hyperlinks on his website, was publishing the defamatory information.
The SCC said that in order 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”. To prove the publication element, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it.
The SCC agreed with the proposition advanced in US judgements that reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment. A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the context. Communicating something is very different from merely communicating that something exists or where it exists. Hyperlinks are references. By clicking on the link, readers are directed to other sources. Inserting a hyperlink gives the primary author no control over the content in the secondary article to which he has linked.
The SCC found that the features, that a person who refers to other content generally does not participate in its creation or development, serve to insulate those involved in internet communications. Although a person selecting the content to which he wants to link might facilitate the transfer of information, it is equally clear that when a person follows a link they are leaving one source and moving to another. In the SCC’s 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. The ease with which the referenced content can be accessed does not change the fact that an individual is referring the reader to other content. A hyperlink requires some act on the part of a third party before he gains access to the content. A hyperlink expresses no opinion, nor does it have any control over the content to which it refers.
From the perspective of public policy, the SCC said that the internet cannot provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.
That being said, the SCC ruled 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 they have actually expressed something defamatory. This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source.
The SCC said that preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations.
The court found that making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker. The court said that such an approach promotes expression and respects the realities of the internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.
The Century21 website in BC features property listings belonging to Century21 brokers and agents from BC and across Canada. Users can search the website for properties by location, price, and other features. The Rogers’ website functions as a type of search engine which indexes property listings from a number of real estate sites. Users can search the Rogers’ website for properties by location, price, number of bedrooms etc.
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Ryan K. Smith is a lawyer and trade-mark agent at Feltmate Delibato Heagle LLP. He specializes in corporate and commercial law with expertise in intellectual property matters including trade-marks, copyrights, privacy, information technology, and confidential information. You can reach Ryan at email@example.com and (905) 287-2215.