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Crookes v. Newton, 2011 SCC 47, October 19th 2011.
Single Sentence Summary
A majority of the Supreme Court of Canada ruled that a hyperlink, by itself, cannot be defamatory, as it cannot be seen as a “publication” of the content to which it refers.
To successfully plead defamation the onus rests with the plaintiff to prove on a balance of probabilities that the words complained of were “communicated to at least one person other than the plaintiff” (Grant v. Torstar Corp., 2009 SCC 61 at para. 28).
The respondent posted an article that linked to material which was defamatory of the appellant. Nothing in the respondent’s article per se was alleged to be defamatory of the appellant, rather it was the creation of the hyperlinks themselves that were allegedly defamatory. The relevant part of the impugned article is reproduced below (the hyperlinks are underlined):
“ . . . I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.”
The first link was a “shallow” one, taking the reader to a webpage with additional links to ten articles, three of which were alleged to be defamatory. The second link was a “deep” one, taking the reader directly to an allegedly defamatory article. Since both links were ‘passive’, they required the reader to click on them to access the hyperlinked content (although, there was no evidence as to whether any of the 1,788 page views actually led to readers following those links).
At trial (2008 BCSC 1424), the Court held that the mere existence of a hyperlink does not lead to the presumption that someone actually used it to access the defamatory material. The Court accepted Newton’s submission that hyperlinks were analogous to footnotes since they merely referred the reader to another source without repeating its content. Without this repetition, there could be no publication (an essential element of the tort of defamation).
Likewise, a majority of the British Columbia Court of Appeal dismissed the appeal (2009 BCCA 392), agreeing that hyperlinks were analogous to footnotes or a card index in a library. Without repetition there could be no republication, and therefore no defamation. The dissenting judge however rejected the footnote analogy as dispositive of the republication issue, and found it unlikely no reader was led to the defamatory articles amongst the 1,788 page views.
A six judge majority of the Supreme Court of Canada held that “the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed” (para. 44). Justice Abella, writing for the majority, held that hyperlinks are essentially “references” (para. 27), and referencing something is different than exerting control over it. Without this control, there could be no liability. At paragrpah 30 she writes:
“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.”
At a policy level, Justice Abella also underscored the importance of the Internet in disseminating information. Without hyperlinks the Internet could not provide access to information. At paragraph 36 she indicates:
“The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential ‘chill’ in how the Internet functions could be devastating . . . ”
In separate concurring reasons, Chief Justice McLachlin and Justice Fish, took issue with the majority’s unequivocal statement that a hyperlink could never amount to publication. At paragraph 48 they held that:
“ . . . Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent web site that later becomes defamatory would not be liable.” (emphasis in original)
In reasons that concurred with the result, but which expressly disapproved of the majority’s reasoning as a whole, Justice Deschamps proposed an analysis that, in her view, was in keeping with traditional defamation concepts. At paragraphs 58 and 59 she writes:
“To create a specifically Canadian exception for references, which has the effect of excluding hyperlinks from the scope of the publication rule, is in my view an inadequate solution to the novel issues raised by the Internet. On the one hand, this blanket exclusion exaggerates the difference between references and other acts of publication. On the other hand, it treats all references, from footnotes to hyperlinks, alike. In so doing, it disregards the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.
A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation.” (emphasis in original)
In the end, Justice Deschamps would have found that the “deep” link (Wayne Crookes) did indeed make the content of that article readily available. However, without a sufficient factual record she was not prepared to infer that anyone other than the appellant had actually clicked on it. She also indicated that even if the respondent were prima facie liable for defamation, that he could have raised one of the traditional defenses to defamation given that his article was on a matter of public interest (like fair comment, or the newly-minted defence of responsible communication on matters of public interest created by the Court in Grant v. Torstar Corp., 2009 SCC 61).
Justice Abella’s view that “ . . . a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers” (para. 14) is sound. It is however tempered by two interrelated, and sometimes competing, concerns.
First, she rightly acknowledges at paragraph 43 that:
“ . . . The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.” (emphasis added)
(A similar view about the evolution of technology was expressed by Chief Justice McLachlin and Justice Fish at paragraph 52 of their concurring reasons).
Second, is the overriding policy concern of protecting freedom of expression and access to information (paras. 34 – 36). Even with the evolution of technology, this concern should always warrant considerable deference.
Furthermore, the concurring reasons of Chief Justice McLachlin and Justice Fish would find publication of a defamatory statement if the text indicates “adoption or endorsement of the content of the hyperlinked text” (para. 48). While this refinement to Justice Abella’s reasons might be tempting, it could be argued that hyperlinking to anything in an article represents some sort of adoption or endorsement of its content, especially if the context of the link does not indicate a negative treatment or contrary opinion.
In the end, the Internet is fundamentally a series of interconnected pages and resources. Aside from the policy reasons identified above, the mere technological features of the Internet favour the adoption of Justice Abella’s approach. One need only reference the early views of Sir Timothy John “Tim” Berners-Lee, the “inventor” of HTML, who in 1997 noted that:
“The ability to refer to a document (or a person or anything else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else . . . . There is no reason to have to ask before making a link to another site. But by the same token, you are responsible for what you say about other people, and their sites, etc., on the web as anywhere.” (emphasis in original) (available at http://www.w3.org/DesignIssues/LinkMyths.html)
– Dr. Emir Crowne*,
Associate Professor, University of Windsor, Faculty of Law,
Barrister & Solicitor, Law Society of Upper Canada
– Arif A. Mahmood,
Associate, Gardiner Roberts LLP
* Professor Crowne would like to acknowledge the exceptional editorial assistance of Luciana Tancoc-Marcu, and the on-going funding provided by the Law Foundation of Ontario.