Supreme Court of Canada Rules on Hyperlinks and Defamation
In Canada, for someone to succeed in bringing a defamation action they must prove that the defamatory words were “published”. To be published the words must be communicated to at least one person other than the person claiming defamation.
The SCC concluded that hyperlinking is not, in and of itself, publication of the content to which the link refers.
The Facts of the Case
Crookes brought a series of law suits against people he claimed were responsible for allegedly defamatory articles published on various websites. Newton, who owns and operates a website containing commentary on various issues, posted an article on his web site that had hyperlinks to other web sites, which in turn contained information about Crookes.
Crookes sued Newton on the basis that two hyperlinks Newton inserted linked to defamatory material and that by using those hyperlinks, Newton was publishing the defamatory information. One of the hyperlink was a “shallow” hyperlink, which means it simply took the reader to web page where the articles were posted. The other was a “deep” hyperlink, which took readers directly to a specific article. In essence, Crookes argued that a person who includes a hyperlink on a webpage publishes any defamatory remarks found on the linked page because the person inserting the link has done something that has the effect of transferring the defamatory information to anyone who clicks on the link.
The Majority’s Decision
Justice Abella, writing for the six-justice majority, concluded that hyperlinks are like references and a reference to other content is fundamentally different from other acts involved in publication. According to Abella, it is the actual creator or poster of the defamatory words in the linked material who is publishing the libel when a person follows a hyperlink to that content
Abella concluded, “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, would that content be considered to be “published” by the hyperlinker.” [Paragraph 42 of the judgement]
The Concurring Opinions
In a concurring opinion, Justices McLachlin and Fish were not willing to absolve all hyperlinkers from possible liability for defamation. Instead, McLachlin and Fish concluded that there could be some cases where the combined text and the hyperlink may amount to publication of defamatory material contained in the hyperlinked text. “If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content.” [Paragraph 48]
In a lengthy separate opinion, Justice Deschamps disagreed with the approach taken by the other justices. Instead, Deschamps favoured a “more nuanced approach” under which a reference to defamatory content could satisfy the first component of publication if it makes defamatory information readily available to a third party, if the act was deliberate. [Paragraphs 106 and 107] And, if the first component is met, the court should then turn to the second component, which is whether a third party received and understood the defamatory information. Deschamps then set out some of the factors a court could consider in determining whether to infer that a third party clicked on the hyperlink and read and understood the linked information. [Paragraph 110] Applying her approach to the facts of the case, however, Deschamps concluded that Crookes did not establish facts supporting the second component and so she too found in favour of Newton.
Conclusion: Hyperlinks are Crucial to the Flow of Information Over the Web
The SCC’s decision is obviously comforting to bloggers and others who use hyperlinks. It should also be welcome by all who use the Internet as it reflects the reality that hyperlinks are crucial to the flow of information. As Justice Abella put it, “The Internet cannot, in short, 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.” [Paragraph 36]