Reference: 2011 SCC 47
Court: Supreme Court Canada
Judge: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ
Date of judgment: 19 Oct 2011
Summary: Defamation - Publication - Liability for Hyperlinks - Internet - Supreme Court of Canada
The Defendant published an article entitled “Free Speech in Canada” on a website which he owned and operated. The article contained hyperlinks to other websites, two of which contained allegedly defamatory material about the Claimant. The Claimant sued in defamation claiming that by including the hyperlinks in his article the Defendant was publishing the allegedly defamatory material and was therefore liable for it.
The Supreme Court of British Columbia found for the Defendant. The trial judge decided that hyperlinks were analogous to footnotes and since they only refer to material rather than repeating it there is no publication. The Court of Appeal upheld the decision. The majority also adopted the footnote analogy, finding that while some words in an article might constitute an encouragement or invitation to view the site linked to so as to incorporate the allegedly defamatory material, there were no grounds for such a finding in this case. The matter was appealed to the Supreme Court of Canada.
Whether hyperlinks that connect to allegedly defamatory material can be said to publish that material, such that the publisher of the article which contains the hyperlink can be liable in defamation.
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.”
This decision establishes a clear rule that those who hyperlink to defamatory material will not be held to have published that material, and therefore will not be liable in defamation under Canadian law. It appears that this is so even where the hyperlinker is aware that the material he or she is linking is defamatory; and even (as per the majority) where the hyperlinker adopts or endorses the material accessed via the hyperlink, so long as he or she does not actually repeat the defamatory material.