An important case was released today by the BC Court of Appeal (Crookes v. Newton) dealing with defamation law. When a Defendant is sued for defamation it must be proven that defamatory material was “published”. Today’s case was the first from a Canadian Appellate Court which dealt with the issue of whether an author of an article who provides a hyperlink to another article which contains defamatory material constitutes ‘publication’.
The BC Court of Appeal held 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”. The key discussion is set out at paragraphs80-93 which I set out below:
[80] There are two aspects to the publication element of the tort of defamation. The first, relating to the defendant as publisher, concerns the act of promulgating the impugned item. The second, relating to the third party receiver of the impugned item, concerns the receipt of that item by a person within the court’s jurisdiction. (I refer to the issue of jurisdiction because publication, to be actionable, must be within this jurisdiction, and publication of internet material occurs where the words are read: King v. Lewis, [2005] E.M.L.R. 45, C.A.;Gutnick v. Dow Jones, [2002] H.C.A. 56.) In my respectful view, the reasons for judgment of my learned colleague mix these issues as one.
[81] The first of these two aspects is whether, by creating the hyperlinks in question, Mr. Newton can be seen to have promulgated a writing or message that is defamatory of the appellant. A near case was considered by this Court in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1. The issue in Carter was whether the defendant, in publishing a web address at which the allegedly defamatory material was contained, had re-published that material. Mr. Justice Hall, for this Court, in holding it did not, said:
[12] In my opinion, the factual situation here is closer to the situation found to exist in the New York cases of MacFadden v. Anthony, 117 N.Y.S. (2d) 520 (Sup. Ct. 1952) andKlein v. Biben, 296 N.Y. 638 (Ct. App. 1946), referred to by the trial judge, where the courts held reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment.
[82] While the circumstances of Carter differ from those before us, there is, in my view, no substantial difference between providing a web address and a mere hyperlink. Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.
[83] Nor am I persuaded that in this era of rapidly changing technology we should assume access from a mere web address mentioned in an article will require any more effort than from a hyperlink. It is easy to contemplate a program whereby a click of a computer mouse engages a program on the reader’s computer that effects the same result as a hyperlink. In other words, I agree with my colleague’s conclusion at para. 58:
I agree with the trial judge that the reasoning of this Court in Carter supports Mr. Newton’s position that the mere fact he hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites.
[84] I agree, as well, that the circumstances of a case may add more so as to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to go to a jury. So a statement to the effect “N is described at [hyper link]” may itself incorporate a libel so as to be defamatory.
[85] In the case before us, the judge held concerning the context of the hyperlinks:
[32] In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself. The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles. In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content.
[33] As the Court of Appeal observed in Carter, citing the proposition of the New York cases MacFadden v. Anthony and Kline v. Biben, “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”.
[86] In these observations, in my view, the judge was entirely correct.
[87] My colleage considers that the judge did not fully explore the context of the hyperlinks in determining Mr. Newton had not participated in publishing the impugned articles. In her view the fact Mr. Newton’s article containing the hyperlinks deals with free speech and defamation, and the fact it refers to lawsuits involving Mr. Crookes, serve “as words of encouragement, or an invitation”, to look further.
[88] For clarity, the article on Mr. Newton’s website under the headline “Free Speech in Canada” said:
Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.
[89] With respect, I see no encouragement or invitation from the fact the discussion concerns free speech and defamation. Nor, in my view, can reference to Mr. Crookes’ litigation reasonably have that effect. Those factors, at a minimum, alert the reader to the potential for untrue content or disputed commentary. They fall far short of a statement of approbation, or adoption, and appear to me to be most comparable to a footnote for a reader, or a card index in a library. It is not, as was suggested is sometimes the way in the recent caseMetropolitan Schools v. Google Inc., [2009] E.W.H.C. 1765 (Q.B.), a snippet from the article or a snippet produced by a search engine.
[90] On these considerations I conclude Mr. Newton was not a publisher because of his hyperlinks to the offensive article.
[91] The second aspect of publication is whether it can be inferred a person accessed the impugned articles by way of the hyperlinks. My colleague would conclude, from the fact of 1,788 “hits” of Mr. Newton’s article that at least one person within this jurisdiction, did so.
[92] In my view, the approach taken by my colleague to the effect that from the number of persons accessing Mr. Newton’s website it may be inferred that a person in this jurisdiction accessed the impugned articles by clicking on them, does not sustain scrutiny. In the context of internet life, we have no way to assess the volume of “hits” here compared to the norm, the usual behaviour of internet readers or “surfers”, or the jurisdiction in which they reside. The conclusion drawn by my colleague is, with respect, tantamount to a presumption that in the case of a website accessed to any significant extent, there has been communication of the offensive material. This is contrary to her conclusion on the issue of presumption, and one with which I do not agree. The conclusion effectively reduces the element of publication to the role of the publisher without consideration of the receipt of the impugned material. There may be cases in which more is known supporting such an inference, but such is not the case here where all that is before us is the bald number of hits. In my view there is an insufficient basis upon which to make such an inference, and the inference drawn cannot co-exist with the reasons for judgment on the matter of a presumption.
[93] Last, the appellant complains that Mr. Newton did not remove the hyperlinks when asked to do so. This is not a question considered by the judge, and findings of fact are not contained in the reasons for judgment to support a discussion of that interesting issue. But for my conclusion on the question of drawing an inference that a person clicked on the hyperlink, I would allow the appeal and remit this question to the trial court for determination. However, in view of my conclusion on the question of inference, I would dismiss the appeal.
