Decision of Supreme Court of Canada
The Supreme Court of Canada has decided that mere hyperlinking to defamatory matter is an insufficient basis on which to impose liability for defamation, even if the publisher of the hyperlinks is aware of the defamatory nature of the underlying linked material.
The issue of liability for hyperlinking to defamatory material, which is central to modern communication on the internet, has received scant attention by courts in most common law jurisdictions. The Supreme Court of Canada has now considered the issue in the case of Crookes v Newton, before a nine strong panel of justices and handed down judgment on the matter.
In deciding that a hyperlink was not a publication within the meaning used in the law of defamation, the Supreme Court of Canada made it clear that the court should investigate the circumstances of each publication:
“A hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. 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,” says the decision.
In the case, the claimant had sued on articles the defendant posted on a website entitled “Free Speech in Canada,” which contained hyperlinks to other web sites, which in turn contained information about the claimant which he maintained constituted a smear campaign.
Justice Abella, who gave the majority decision of the Court, recognised that hyperlinks were an essential component of directing communications online:
“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.”
The Supreme Court upheld the decision of the Supreme Court of British Columbia.
The issue of liability for hyperlinked publication has not be determined by any court in England and Wales. It may be thought that this case presented atypical facts on which to test the principles: usually hyperlinks are incorporated into internet material in order to provide evidence for a particular argument and are often contextualised and ‘endorsed’ by the person establishing the hyperlink.
• BBC – Hyperlinks cannot libel
• Canadian Lawyer Magazine – Hyperlinks not considered ‘publications’ rules Supreme Court.