Supreme Court of Canada Confirms Hyperlinks On Their Own Are Not Defamatory
Although not a personal injury case, the Supreme Court of Canada released reasons for judgement today which I have been eagerly awaiting as a legal blogger. In short the Supreme Court of Canada ruled that “making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content“.
In today’s case (Crookes v. Newton) the Defendant posted hyperlinks on a website he owned and operated to articles about the Plaintiff which were allegedly defamatory. He did not author the allegedly defamatory articles.
The Plaintiff sued arguing the act of hyperlinking to defamatory content amounts to republishing the content and hence is also defamatory. His case was dismissed at trial. The BC Court of Appeal also dismissed the case finding that “there is no basis for finding a presumption of publication of the hyperlinked articles and that the mere fact (the Defendant) hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites”. You can click here for my 2009 article discussing the Court of Appeal’s judgement.
The Supreme Court of Canada unanimously dismissed the Plaintiff’s final appeal. In authoring the majority judgement Justice Abella provided the following reasons:
 A hyperlink is a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information. Clicking on the hyperlink connects the reader to that information.
 The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material. ..
 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. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.
 I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments. It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia , (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64: ..
 But I am not persuaded that exposing mere hyperlinks to the traditional publication rule ultimately protects reputation. A publication is defamatory if it both refers to the plaintiff, and conveys a defamatory meaning: Grant, at para. 28. These inquiries depend, respectively, on whether the words used or “the circumstances attending the publication are such as would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred” (Brown, at para. 6.1), and whether the words would “tend to lower a person in the estimation of right-thinking members of society” (Botiuk v. Toronto Free Press Publications Ltd., at para. 62). Defamatory meaning in the words may be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented” (Botiuk, at para. 62, citing Brown (2nd ed. 1994), at p.1-15). (See Brown, at paras. 5.2, 5.4(1)(a) and 6.1; Knupffer v. London Express Newspaper, Ltd.,  A.C. 116 (H. L.); Butler v. Southam Inc., , 2001 NSCA 121, 197 N.S.R. (2d) 97; Bou Malhab v.Diffusion Métromédia CMR inc., , 2011 SCC 9,  1 S.C.R. 214, at paras. 63 and 112; Botiuk, at para. 62.)
 Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actuallyexpressed something defamatory (Collins, at paras. 7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).
 Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations. As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to. If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content.
 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, should that content be considered to be “published” by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation. While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.
 I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.
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