The Hexagonal Hole of Modernity – Defamation in an Internet Age: Crookes v. Newton 2011 SCC 47

John Newton owned and operated a website in British Columbia in which he commented about various issues including free speech and the internet. One of the articles he posted was titled “Free Speech in Canada” and within this article were hyperlinks to other websites which contained allegedly defamatory information about Mr. Wayne Crookes. Mr. Crookes sued Mr. Newton, arguing that, by that putting hyperlinks on his website connecting to defamatory material, he in turn had “published” the defamatory material. At the time of the lawsuit, Mr. Newton’s website containing the hyperlinks had been “viewed” 1,788 times – although there was no evidence as to whether, or how often, the hyperlinks themselves had been used.

It is well established that a claim for defamation requires that a plaintiff prove publication of defamatory words.  Both the British Columbia Supreme Court and Court of Appeal had held that the hyperlinks themselves did not constitute republication of the defamation and dismissed the lawsuit against Mr. Newton.

The Supreme Court of Canada framed the issue to be decided as simply “whether hyperlinks that connect to allegedly defamatory material can be said to ‘publish’ that material”. In writing for the majority Madam Justice Abella ultimately concluded that “hyperlinking is not, in and of itself, publication.”

Madam Justice Abella discussed in some detail the varied nature of a hyperlink. She commented that hyperlinks are merely references, and that referencing on its own does not involve exerting control over the content which is linked. She stated that, although a person choosing to insert a hyperlink might facilitate the transfer of information (which she noted was a traditional hallmark of publication), when a person follows a link they are leaving one source and moving on to the other. Accordingly, in her view, it was the actual creator or poster of the defamatory words in the secondary material who is “publishing” when a person follows a hyperlink to that content.  She commented that the ease by which with the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other, separate content. She noted that, by their nature, hyperlinks are content neutral:

[30]  Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.

Madame Justice Abella also commented upon the importance of hyperlinks to the internet as a whole and noted it has been stated that without hyperlinks “the web would be a library without a catalogue: full of information, but with no sure means of finding it” and accordingly  hyperlinks are critical to the internet’s capacity to disseminate information. Further, she noted that limiting hyperlinks’ usefulness by subjecting them to a traditional publication rule would have the effect of seriously restricting the flow of information on the internet. Given the core significance the role of hyperlinking has to the internet, Madam Justice Abella stated a decision that a hyperlink constitutes publication risked impairing its whole functioning and that  “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.”

As such, she ultimately held that making reference to the existence and/or location of content by a hyperlink or otherwise, without more, is not publication of that content. She went on to hold that 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.

In concurring reasons, Chief Justice McLachlin and Mr. Justice Fish agreed with the principle that a mere general reference to a website by way of a hyperlink was not enough to find publication. However, they would go further than Madam Justice Abella with regards to when a hyperlink would constitute publication. Madam Justice Abella’s reasons were that hyperlinking is only publication if the actual content of the defamatory material is reproduced. Chief Justice McLachlin and Mr. Justice Fish would consider a hyperlink to constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.

Alternate concurring reasons were written by Madam Justice Deschamps, who disagreed with the majority opinion that a mere hyperlink does not constitute publication.  She would prefer a more nuanced approach in which reference to defamatory content in a hyperlink could be publication if the poster “deliberately”, by playing more than a passive role,  makes the defamatory information “readily available” in a comprehensible form. In determining whether hyperlinked information is “readily available”, a court would have to consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is a direct or indirect link, and whether the linked information is available to the general public.

The Supreme Court of Canada decision of Crookes v. Newton  illustrates the court striking  a balance between the protection of individuals’ reputations and the use of the internet as a medium for public discourse and brings much needed clarity given the role the internet can play in disseminating defamatory material.