BC Court of Appeal Rules That Hyper-linking to Defamatory Content is Not, By Itself, Defamation

The BC Court of Appeal (Court) has affirmed a trial judgment holding that, in itself, providing a link to a defamatory web site is not sufficient to constitute publication for the purpose of a defamation action. This is apparently the first time the issue has reached the appellate court level in Canada. Although the Court’s decision on the result was split 2-1, the Court was unanimous in finding that there is no presumption of publication simply because material is hyperlinked. Even if a site is particularly popular, materials accessed by linking from that site are still one step removed – there is no automatic presumption that a viewer visiting site A will follow the invitation to view hyperlinked articles at site B. Lacking a presumption of publication, the Court went on to consider whether the defendant’s conduct constituted the tort of defamation: that is, whether he had in fact “published” the material, and whether a third party within the Court’s jurisdiction could have read it. The majority of the Court found that the mere linking to potentially defamatory sites does not make the defendant a “publisher” of defamatory material. However, circumstances could arise, said the majority, in which the hyperlinking could constitute publication – for example, if the author were adopting the material or inviting the viewer to click on the hyperlinks. In this case, however, the defendant simply cited the articles as a reference, which the Court found was not sufficient to amount to publication. Further, the majority disagreed with the trial judge’s view that access to articles may be inferred from the number of persons that accessed the defendant’s site. For the reasons for judgment in Crookes v Newton 2009 BCCA 392, see: http://www.canlii.org/en/bc/bcca/doc/2009/2009bcca392/2009bcca392.html Summary by: Lea Epstein