October 31, 2008
Canadian Court: hyperlinking to a libel is not publishing it
Publisher of a hyperlink to a defamatory article held not liable for defamation
The Supreme Court of British Columbia has refused to find a man who posted hyperlinks to allegedly defamatory articles responsible for the content of those articles.
Political activist Wayne Crookes and his company brought proceedings in respect of four internet articles which they say constitute a smear campaign against them. Jon Newton published an article on the website p2pnet.net about the case and its implications for internet forums, which included links to two of the articles complained of. Crookes and his company sought summary relief against Newton.
Dismissing the action, Kelleher J held that publishing a hyperlink does not constitute republication of the content available by following the link. The links at issue were akin to footnotes, which directed readers to material from another source but did not comment on their truthfulness or accuracy. The Judge said that the case might have been different if Newton had endorsed the linked material, such as by writing "the truth about Wayne Crooks is found here", in which case he might well have been liable. He also held that the Plaintiffs had failed to prove publication and could not rely on any presumption.
The issue of liability for defamation for publishing hyperlinks has not been tested before the English courts, but it may be that a different approach would be adopted, following Hird v Wood (1894) 38 SJ 234, in which a man was found liable for pointing at a defamatory placard. Context might be capable of stripping the hyperlinked content of its defamatory meaning, but that is of course a separate issue.