September 15, 2009
Crookes v. Newton
For the Supreme Court decision on this case see Crookes v. Newton, SCC.
Hyperlinks to defamatory material on other websites may expose website owners to liability in defamation
By David Crerar and Michael Skene
Borden Ladner Gervais LLP, Vancouver
Hyperlinks will not in themselves implicate a website owner in publishing defamatory material found on the hyperlinked website.
But if the hyperlinking website endorses or adopts the defamatory content, or explicitly encourages the reader to link to the offending material, then the hyperlinking website owner may be deemed to have participated in a republication of the offending material, and face liability and damages.
A seemingly large number of ‘hits’ on a webpage with hyperlinks will not in itself lead to an inference that any reader ‘clicked’ onto the hyperlink and thereby read the offending material.
2. The Crookes facts
The plaintiff in Crookes is a Vancouver-based businessman and sometime member of the Green Party of Canada. His Green party ties were the subject of various articles that he claimed to be defamatory. In an earlier lawsuit, he sued the supposed author of those articles. This case arises from a second lawsuit commenced by Mr. Crookes. In the facts leading to the present decision, the defendant Jon Newton runs a website, www.p2p.net. On his website Mr. Newton published an article entitled, “Free Speech in Canada”. The Newton article referred to the earlier Green Party article, and provided a hyperlink to that article. Newton did not quote the earlier article, or comment on its content.
3. Publication via hyperlink
The Court concluded that providing a hyperlink, in itself, does not establish that publication has occurred. If the website simply provides a hyperlink, or describes the hyperlinked contents in a neutral manner, then the hyperlink is serving as no more than a footnote or a card in a library catalogue. The website is not adopting the offending words as its own, and is not indirectly publishing them.
If, however, the linking website endorses the content of the hyperlinked material or encourages the reader to click to the hyperlinked material, the website defendant may be seen to be participating in the dissemination of the offending material, and publication may be found.
The Court also confirmed that providing a website address (as opposed to providing a clickable hyperlink), without more, does not constitute publication.
4. Presumption that the material was read within the jurisdiction
In Crookes, the Newton article providing the hyperlinks had been accessed a total of 1,788 times. It was not clear whether anyone accessing the Newton article had actually clicked on the hyperlinks to the offending material. Nor was it clear what number of these hits came from independent or repeat visits. Nor was it clear how many hits came from human beings or from information-gathering internet “robot” software. Nor was it clear whether any of the readers were located in British Columbia.
The Court found that the bald fact that there was a certain number of hits on the website article could not prove that anyone had clicked the hyperlink to read the Green Party article via the Newton article.
Accordingly, the plaintiff had also failed to prove that anyone in British Columbia had read the article, and thus could not show that British Columbia courts had jurisdiction to hear the matter.
The one dissenting justice would have found that 1,788 hits on an article on the topic of free speech provided ample evidence from which a court could infer that at least one person had read the article, and clicked on the hyperlink to the offending article, thus establishing publication.
5. Liability for refusing to remove defamatory material
Mr. Crookes also argued that publication should be established because Mr. Newton had declined to remove the hyperlinks to the offending material after Mr. Crookes had demanded that he do so. Mr. Crookes argued that this refusal showed that Mr. Newton exercised control over the hyperlinks, and thus that he had participated in their dissemination.
The Court declined to address this issue, which had not been argued on a full evidentiary record in the Court below. As the Court had found that it could not be inferred that anyone had clicked on the hyperlinks, it was unnecessary to address this issue.
This issue remains unsettled, but cases both in British Columbia and England suggest that a defendant website host that fails to remove defamatory postings after having received notice of their potentially defamatory content may be liable for republication of those materials: Godfrey v. Demon Internet Ltd.  Q.B. 201 and Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398.