Home > Volume X > Issue 4: October 27, 2011 > Libel Exemption for Hyperlinks and References in Canada
Libel Exemption for Hyperlinks and References in Canada
On October 19, 2011, the Supreme Court of Canada issued its highly anticipated ruling on the potential for hyperlinks to attract further liability in respect of defamatory material being linked. In Crookes v. Newton, 2011 SCC 47, the majority decision by Abella J. held that references (including hyperlinks) do not by themselves constitute publication of the defamatory material, unless the reference itself repeats the defamation. McLachlin C.J. and Fish J. wrote joint concurring reasons which propose to exclude endorsements of hyperlinked content from this approach, and Deschamps J. also agreed in the result but not in the law by proposing an approach based on a more detailed analysis of the circumstances.
The action is summarized in our previous article, and centered around two links, one shallow and one deep, by the authors of a free speech website. The links were to materials describing the circumstances surrounding the plaintiff’s existing defamation actions against the owners of one of the sites being referenced. The majority reasons at the SCC sided with the trial judge and the majority in the Court of Appeal: namely, that hyperlinks are akin to mere references, and therefore do not fulfill the traditional elements required for libel as they indicate that something exists but do not constitute a republication or a communication of the content being referenced. The decision provides additional rationale for the new rule, including that the person posting the hyperlink (the “hyperlinker”) has no control over the changing material being linked. Liability for defamation in hyperlinking may still exist, however, “when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content.” Short of this, there is no publication, and the plaintiff is left to seek recourse solely against the author of the article being referenced. This new rule for hyperlinks is considerably broader than the defense of innocent dissemination which would otherwise have required the defendant to take down the hyperlink once notified of the defamation.
McLaughlin C.J. and Fish J., in obiter, would have expanded liability to include cases in which a hyperlink creates a contextualized endorsement for the content being linked.
Deschamps J. disagreed that hyperlinks should be excluded from the general application of the publication rule, and questioned the legitimacy of treating all references (from footnotes to hyperlinks) as exempt without taking into account their potential to harm people’s reputations. Although Deschamps J.’s proposed factual analysis of hyperlink libel may seem to be a useful starting point in the analysis which meets the criteria of McLaughlin C.J. and Fish J., the majority judgment is clear that a hyperlink on its own is not a republication of the underlying material.
For our prior commentary on the case, visit:
