Ruling sets parameters governing hyperlinks

For the London Free Press - April 5, 2010 Read this on Canoe

Court upholds judge’s decision a hyperlink to defamatory material doesn’t make the person posting the link liable for defamation

The British Columbia Court of Appeal decision in Crookes vs. Newton dealt with the issue of whether posting hyperlinks on one's own website that link to defamatory content on other websites can trigger defamation liability.

Jon Newton, the defendant, owns and operates the p2pnet website. He posted an article on July 18, 2006, with hyperlinks to websites that contained articles defaming the plaintiff, Wayne Crookes, a Vancouver businessperson, president and sole shareholder of West Coast Title Search Ltd., and a volunteer for the Green Party of Canada.

Crookes and his lawyer asked Newton to remove the hyperlinks. Newton refused. It was Crookes's position that Newton was a publisher of the impugned articles found at the hyperlinked websites. Newton was of the view there was no need to remove them because they were "merely a hyperlink."

In October 2008, the judge dismissed the action against Newton for damages on the basis that Crookes had failed to prove publication of the alleged hyperlinked defamatory material.

That order was appealed to the B.C. Court of Appeal. That court confirmed the mere fact that a person may include a hyperlink on his own website linking to another site does not make that person publisher of the content of the hyperlinked site. And if that person is not the publisher, he is not liable for any defamation on the linked site.

The court set out two aspects to the publication element in defamation cases: the first, concerning "the act of promulgating the impugned item," and the second relating to "the receipt of that item by a person within the court's jurisdiction."

On the first point, the court noted there was a barrier between the article and the hyperlinked websites that had to be bridged by the reader. The court of appeal's view was in such a situation, the reader leaves the original article and enters a different, and independent, website.

The majority disagreed with the minority finding that Newton's article served "as words of encouragement, or an invitation" to browsers. Instead, the court agreed with the judge's reasons that "the circumstances of a case may add more so as to demonstrate a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents."

On the second point, the court acknowledged there may be cases where more information is available to support an inference that a person in the court's jurisdiction got access to the impugned articles by clicking on them. But that information was not available in this case.

The appeal court ultimately upheld the judge's decision, ruling that a mere hyperlink to defamatory material does not make the person posting the hyperlink liable for defamation.

But if the linking website endorses the material or encourages the browser to go to the hyperlinked website, the linking website may be held liable because that might constitute publication.

UPDATE:  After this article went to press, the Supreme Court of Canada announced that it will hear an appeal of this case - so stay tuned to see if the Supreme Court has different thoughts or confirms this decision.