Volume VII

Issue : 13: September 24, 2009

• Microsoft Loses Patent Infringement Appeal but Damages Award to be Reduced
• State of Virginia Backs Off Demand for Facebook User Data
• Court Rules on Prospect of Liability for Linking to Allegedly Defamatory Content
• Malicious Online Advertising Brings Microsoft Suit
• Canadas Privacy Watchdogs Wary of Proposed Surveillance Laws
• FCC Releases Net Neutrality Rules
• Copyright Infringement Suit Brought Against the Ellen DeGeneres Show

Home > Volume VII > Issue 13: September 24, 2009 > Court Rules on Prospect of Liability for Linking to Allegedly Defamatory Content

Court Rules on Prospect of Liability for Linking to Allegedly Defamatory Content

The British Columbia Court of Appeal has affirmed that there is no basis for finding a presumption of publication for hyperlinked articles. The appellant, Mr. Wayne Crookes, brought a claim for damages for defamation against Mr. Jon Newton, the owner and operator of a website entitled “p2pnet.” Mr. Crookes alleged that he had been defamed because the p2pnet website hyperlinked to articles containing alleged defamatory content against him. The issue on appeal was whether the trial judge erred in finding that Mr. Crookes had failed to establish that hyperlinks in this instance constituted publication.

In a divided decision, the Honourable Madam Justice Saunders, in writing for the majority, dismissed the appeal and held that even though Mr. Newton’s website had hyperlinks to alleged defamatory articles, this did not make him a publisher of the material found at the hyperlinked websites. The Court explained that under the tort of defamation there are two aspects to publication which Mr. Newton failed to meet. Firstly, in creating the hyperlinks, the court held that it could not be established that Mr. Newton promulgated a writing that was defamatory of Mr. Crookes due to the fact that there exists a barrier between the website containing the impugned hyperlinks and defamatory articles that has to be bridged by the reader and not the publisher of the hyperlinks. Secondly, due to the fact there was no way to determine the volume of “hits” generated by the impugned hyperlinks, an inference could not be drawn that those who accessed the p2pnet website also accessed the impugned hyperlinks. Therefore, due to a lack of evidence, the Court found that there was no presumption of publication in this case with respect to the websites and no resulting defamation for publication of the hyperlinks.

For a copy of the decision (Court of Appeal), visit:
http://www.courts.gov.bc.ca/jdb-txt/CA/09/03/2009BCCA0392err1.htm