Defamation

October 19, 2011
Crookes v. Newton, SCC

Majority, Abella J.

The majority decision, written by Justice Abella began by focusing on the single issue at stake:

[3] The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material.

It was made clear that this is not an issue that has been addressed by the legislature. For although statutes have been written to deem certain actions “publishing” none apply to the creation of online hyper-links:

[14] In British Columbia, pursuant to the Libel and Slander Act, R.S.B.C. 1996, c. 263, publication is deemed to have occurred in certain situations. There is, however, no such presumption in relation to material published on the Internet. Nonetheless, Mr. Crookes argued that when a hyperlink has been inserted on a webpage, it should be presumed that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published. For the reasons that follow, I would not only reject such a presumption, I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.

Justice Abella begins with a review of the “tradition” publication rule and criticises it’s broadness for catching innocent disseminators without knowledge of the contents of the original publications. “Under this sole disseminator/sole reader paradigm, the breadth of activity captured by the traditional publication rule is vast.”

In paragraphs’s 21-24, Abella notes that jurisprudence in the Britain and the United States that treats mere linking as distinct from publication, was relid upon in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1,:“reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment” (at para. 12), Hall J.A..

[25] I agree with this approach. It avoids a formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources. Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation in my view.

Justice Abella then makes some critical observations about the nature of hyperlinking. First she points out the lack of control exerted by a person placing a link to content over that content itself:

[27] Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked. (See David Lindsay, Liability for the Publication of Defamatory Material via the Internet, Research Paper No. 10, University of Melbourne Centre for Media, Communications and Information Technology Law (2000), at pp. 14 and 78; M. Collins, The Law of Defamation and the Internet, at paras. 5.42 and 2.42 to 2.43.)

Equipped with this understanding of the nature of a hyper-link and how the act of linking differs from traditional publication, the Court is better able to balance the interests at stake in a defamation action. Justice Abella recalls that in any defamation action the individual right to preservation of their reputation must be balanced against the public’s right to a free press and to freedom of expression. Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

The internet clearly raises the stakes on both sides of the balance. The ease of publication and the potential for anonymous expression makes everyone’s reputation more vulnerable. On the other hand the internet is also recognized as one of the great innovations in the information age for dissemination of information.

[36] 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, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.

The correct balance then, is not found by creating a presumption of liability for linking. But to more carefully scrutinize all original content creators. In this way, while linking should never in itself lead to liability, the Court will recognize that a link to defamatory content can aggravate potential libel in surrounding text.

[40] Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory (Collins, at paras. 7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).

Finally, Abella avoids getting drawn into technical distinctions between so called “deep” or “shallow” links.

[43] I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. 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.

In applying this understanding of linking vs. publication Abella once more, unequivocally rejects the notion that a link can ever be a publication. Regardless of whether evidence can be adduced that the link was or was not followed and defamatory content accessed.

[43] [44] Nothing on Mr. Newton’s page is itself alleged to be defamatory. The impugned conduct in this case is Mr. Newton’s insertion of hyperlinks on his webpage. Mr. Crookes’s argument is that by linking to webpages and websites containing allegedly defamatory content, Mr. Newton has published that defamatory content. Since in my view the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, Mr. Crookes’s action against Mr. Newton cannot succeed. Moreover, even if Mr. Crookes had alleged that Mr. Newton should be understood, in context, to have expressed defamatory meaning, I would agree with the trial judge and the majority of the Court of Appeal that the statements containing the impugned hyperlinks on Mr. Newton’s page could not be understood, even in context with the hyperlinked documents, to express any opinion — defamatory or otherwise — on Mr. Crookes or the hyperlinked content.

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