Canada’s Highest Court Rules Hyper-Linking to Allegedly Defamatory Content is Not Publication

In Crookes v Newton, the Supreme Court of Canada (SCC) has ruled that providing a hyperlink to a web site containing allegedly defamatory content, by itself, does not constitute publication of that content for the purpose of defamation law. The defendant, Newton, operated a web site which contained hyper-links to other sites that the plaintiff, Crookes, alleged contained defamatory content. Both the BC Supreme Court and BC Court of Appeal held that hyper-linking to web sites with allegedly defamatory content does not amount to publication (see E-TIPS®, Hyper-linking to Allegedly Defamatory Content is Not Publication, Vol 7, No 10, November 5, 2008, and BC Court of Appeal Rules That Hyper-linking to Defamatory Content is Not, By Itself, Defamation, Vol 8, No 11, November 18, 2009). In upholding the trial and appeal court decisions, Justice Abella, writing for the six-Justice majority, held that a hyper-link, by itself, is a content-neutral reference and therefore is not a publication of the content to which it links. However, a hyper-link will constitute a publication of defamatory matter if the hyper-linker presents the material in a manner that repeats the defamatory content. In reaching this conclusion, the majority held that references, such as hyper-links, should not fall under the wide scope of the traditional publication rule – that is, that any act communicating defamatory information to a third person constitutes a publication. Justice Abella relied on recent jurisprudence, Charter values, and the important role of the Internet in promoting freedom of expression as a basis for the exclusion. Chief Justice McLachlin and Justice Fish co-authored reasons that substantially agreed with the majority. However, the concurring Justices proposed a different test for when a hyper-link constitutes publication of defamatory matter, suggesting that a hyper-link should constitute publication if, read contextually, the text that includes the hyper-link constitutes adoption or endorsement of the defamatory content to which it refers. Finally, Justice Deschamps provided a further concurring decision, but disagreed with the approach of excluding references, such as hyper-links, from the scope of the publication rule. In her view, the blanket exclusion proposed exaggerates the difference between references and other forms of publication and as well as the differences between references and how those references make defamatory information available to third persons. In reaching its decision, the SCC was required to balance the competing interests of freedom of expression with the protection of reputation. Some commentators have remarked that the majority’s decision has provided considerable protection to freedom of expression in the context of digital references. Others have suggested that excluding hyper-links from the scope of the publication rule may unfairly limit an individual’s ability to defend their reputation and prevent the spread of defamatory material. The full text of Crookes v Newton, 2011 SCC 47, can be found here. For more information and comment on the implications of the decision, see the following blog entries: http://tinyurl.com/3f7hp2a and http://tinyurl.com/3ruqspk. Summary by: Lauren Lodenquai and Adam Lis