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SCC to Clarify How Hyperlinks to Defamatory Content may be Separate Defamation
On April 1, 2010, the Supreme Court of Canada granted leave to appeal from the British Columbia Court of Appeal decision in Crookes v. Newton, 2009 BCCA 392. The British Columbia Court of Appeal dismissed the appeal of the trial decision, which held that posting a hyperlink does not create a presumption of publication of the material presented on the website at the link. Wayne Crookes has alleged defamation in a number of online articles; when Jon Newton posted hyperlinks to them in his free speech blog at p2pnet.net, and refused to remove them, Crookes sued. By finding hyperlinks to be more akin to footnotes than republication, the court in Canada continues to support the rule from the New York cases MacFadden v. Anthony and Kline v. Biben, which posits that “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content.”
The British Columbia Court of Appeal was not unanimous in its decision. The dissent would have allowed the appeal on the basis of inferred publication by “words of encouragement or invitation”, which would overcome the presumption against a hyperlink being publication, and also on the basis that by refusing to remove the links once requested Newton had perpetuated the defamation. The majority found that the method of presentation of the hyperlinks suggested their untruth, and hence those other issues need not be considered. The Supreme Court of Canada is expected to provide some clarity on whether or how hyperlinks to defamatory content may be independently defamatory.
For the Supreme Court of Canada leave to appeal, visit:
http://scc.lexum.umontreal.ca/en/bulletin/2010/10-04-01.bul/10-04-01.bul.html
For the British Columbia Court of Appeal decision in Crookes v. Newton , 2009 BCCA 392, dated September 15, 2009, visit:
http://www.canlii.org/en/bc/bcca/doc/2009/2009bcca392/2009bcca392.html
For additional commentary, visit: