hyperlinks do not constitute publication of defamatory
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.
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.