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Supreme Court of Canada Confirms Hyperlinks On Their Own Are Not Defamatory

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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., [1944] 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, [2011] 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.

Defamation Law – Hyperlinks and Publication

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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.