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hyperlinks do not constitute publication of defamatory material

In October 2011, the Supreme Court of Canada ruled in Wayne Crookes and West Court Title Search Limited v Jon Newton (2011) SCC 47 that publishing a hyperlink on a website to a defamatory article will not give rise to liability for defamation.

Newton owned and operated a website in British Columbia, Canada containing commentary about various issues, including free speech in Canada. On this website Newton posted various hyperlinks to other websites, which in turn contained defamatory content about Crookes and West Court Title Search Limited.

Crookes brought a claim for defamation against Newton alleging that he had defamed the company by publishing defamatory content on his website by using the hyperlinks.

The Supreme Court held that publishing a hyperlink should not be considered as "publishing" for the purpose of a defamation claim. The Supreme Court's reasoning was that hyperlinks are, in effect, references, that "convey that something exists but does not actually communicate the content". Further, they held that someone who posts a hyperlink has no control over the content of the secondary article that the hyperlink provides a link to. Only when content is presented from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be 'published'.

The judge who gave the majority decision, commented that hyperlinks were a key part of directing communications online and that a finding that the posting of a hyperlink would constitute defamation, would "seriously restrict the flow of information on the internet and, as a result, freedom of expression". As a result, posting a hyperlink on a website should not be seen as "publishing" the hyperlinked website's content.

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This is an important decision for publishers and confirms the current thinking that hyperlinks should be seen as footnotes, as opposed to publication of the hyperlinked website's content. However, publishers should take note that they should still be careful not to repeat or endorse the content of the hyperlinked website as this may cause them to lose their protection and be considered a publisher.

Although this decision, as a decision of the Canadian Supreme Court, has no direct effect in England, it is a likely indicator of the stance that an English court may take on this issue.

For further information please contact Elaine Heywood, Legal Director in Blake Lapthorn solicitors' Publishing group on elaine.heywood@bllaw.co.uk or call 023 8085 7124.
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