A hyperlink, by itself, should never be seen as "publication" of the content to which it refers

Crookes v. Newton, 2011 SCC 47 was released a few moments ago.  In summary it holds that merely posting a hyperlink on a website does not amount to a publication of the material so linked.  A summary of this very important decision follows:

 

                    N owns and operates a website in British Columbia containing commentary about various issues, including free speech and the Internet.  One of the articles he posted on it contained shallow and deep hyperlinks to other websites, which in turn contained information about C.  C sued N on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, N was publishing the defamatory information.  At trial, the judge concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words.  The judge agreed that hyperlinks were analogous to footnotes since they only refer to another source without repeating it.  Since there was no repetition, there was no publication.  Furthermore, in the absence of evidence that anyone other than C used the links and read the words to which they linked, there could not be a finding of publication.  A majority of the Court of Appeal upheld the decision, finding that while some words in an article may suggest that a particular hyperlink is an encouragement or invitation to view the impugned site, there was no such encouragement or invitation in this case.  In addition, the number of “hits” on the article itself was an insufficient basis for drawing an inference in this case that a third party had read the defamatory words.  The dissenting judge held that there was publication.  The fact that N’s website had been viewed 1,788 times made it unlikely that no one had followed the hyperlinks and read the impugned article.  Furthermore, the context of the article suggested that readers were encouraged or invited to click on the links.

 

                    Per Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.:  To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it.  Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant.  Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers.  This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

 

                    Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”.  Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content.  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.  Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

 

                    A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.  When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. 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.

 

                    Here, nothing on N’s page is itself alleged to be defamatory.  Since the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, N has not published the defamatory content and C’s action cannot succeed.