Cases

Crookes v Newton

Held

Abella J for the majority, dismissing the appeal:

(1) A hyperlink by itself should never been seen as publication of the material to which which it refers.

(2) Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content should the hyperlinker be considered to have published that content.

Also adopting the footnote analogy, Abella J drew a fundamental distinction between references and other acts involved in publication: (a) a person referencing material does not exert any control over its content - important with hyperlinks as the content of the website linked to can change after the hyperlink is created, (b) communicating something is very different from merely communicating that something exists or its location. On the difference between hyperlinks and other references: "The fact that access to content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral..."

Abella J referred to the balancing exercise required between protection of reputation and freedom of expression, particularly in the light of the Canadian Charter of Rights and Freedoms (1982).

The Court also had regard to the importance of hyperlinks for the free flow of information on the internet, and the chilling effect of a rule imposing liability on authors and publishers who merely hyperlink to defamatory content.

McLahlin CJ minority reasons:

There is a distinction between content neutral references and those which can be understood from their context to actually incorporate the content accessed via the hyperlink into the text, thus:

"A hyperlink should constitute publication if read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to."

Also