In Crookes v Newton, the Supreme Court held that the creation of a hyperlink to allegedly defamatory material was not publication of that material.(1) The decision may not apply in the province of Ontario or to so-called 'automatic' or 'frame' hyperlinks.
Wayne Crookes was a businessman who had been involved with the Green Party of Canada. Jon Newton was the owner and operator of a political website. Newton posted an article on his website entitled "Free Speech in Canada", which contained the following quote: "I've just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes." (The underlined words were hyperlinks.)
The first hyperlink led directly to the OpenPolitics.ca website. That site, in turn, linked to 10 articles, three of which Crookes believed to be defamatory. The second hyperlink connected directly to an article on USGovernetics.com that Crookes believed to be defamatory. Crookes demanded that Newton remove the hyperlinks; Newton refused to do so. Crookes commenced legal action for libel against Newton in the British Columbia Supreme Court.
The British Columbia Supreme Court and British Columbia Court of Appeal ruled in Newton's favour. Crookes appealed to the Supreme Court, which unanimously dismissed his appeal. While the court was unanimous in holding against Crookes, the panel of judges differed on the rationale for doing so. Justice Abella, writing for the majority, held that the creation of a hyperlink to allegedly defamatory material was not publication of that material. Chief Justice McLachlin and Justice Fish agreed with Abella, but stated that they would refine her test. Justice Deschamps stated that there should be no specific exemption for hyperlinks in defamation law, but that publication had not been proven on the particular facts of this case.
Justice Abella's reasons (writing for the majority)
Justice Abella stated that under the British Columbia Libel and Slander Act, there is a presumption of publication for the purposes of defamation in certain situations. Posting material on the Internet is not one of those situations and she would not create a new presumption of publication to that effect. In the past, any act that transferred defamatory material to another person constituted publication of defamation, regardless of intentions. A classic example of this was the 18th century UK case of R v Clerk, where a printer's servant whose only role was to 'clamp down' on the printing press was responsible for libel even though he was unaware of the content.(2)
The jurisprudence in this area evolved after the Charter of Rights and Freedoms was introduced. Abella noted that the approach to defamation law shifted from protecting reputation as a primary goal to seeing protection of freedom of speech as an equally important goal.
Abella held that there were strong differences between referencing and other acts of publication, as a distinction must be drawn between communicating that something exists or where it exists and actually communicating it. References do not exert control over the underlying content. This is especially problematic in the context of hyperlinks as the content at the other end of the link can be edited at any time.
Hyperlinks are essential to the open Internet, Abella held, as hyperlinks are the foundation of the Internet. Subjecting hyperlinks to the traditional publication rule "would be like trying to fit a square archaic peg into the hexagonal hole of modernity".(3)
Abella did not hold that the above meant that creating a hyperlink could never be publication. If a defendant used a reference that in itself conveyed defamatory meaning, a plaintiff could have a successful defamation action against a defendant.
Abella declined to comment on forms of hyperlinks that were not at issue in this particular case, including what she referred to as 'embedded' or 'automatic' links that actually project content from a secondary website onto the primary website. Therefore, given that Newton did not express anything defamatory on his page, Abella dismissed Crookes's appeal.
Chief Justice McLachlin's reasons (with Justice Fish)
The chief justice agreed with Abella that the appeal should be dismissed. However, the chief justice described the test differently. She stated that a hyperlink constitutes publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it linked to. The chief justice, therefore, would also dismiss Crookes's appeal.
Justice Deschamps's reasons
Justice Deschamps believed that there should be no specific exemption for hyperlinks in the context of the publication rules for defamation. Rather, the Supreme Court should enshrine the principle that defamation must be deliberate and make incremental changes from there.
Deschamps wrote that Abella's reasons exaggerated the difference between hyperlinks and traditional references. It is far easier for a user to obtain allegedly defamatory material by clicking on a hyperlink than to obtain the material independently after reading a reference. Although Abella's reasons claim that freedom of expression must be balanced with reputational protection, her ruling in fact swings the pendulum too far towards freedom of expression.
Regarding the fact that the content on the other side of a hyperlink can be edited at any time, Deschamps stated that the same defence of innocent dissemination which is available for book stores and libraries applies. This defence applies where a website is altered to contain allegedly defamatory material until the moment that the creator of the hyperlink becomes aware that he or she is linking to allegedly defamatory information. Creators of hyperlinks also have access to the other defamation defences, such as the defence of fair comment and responsible communication on matters of public interest.
Deschamps concurred with Abella that, as there is no presumption of publication for material posted on the Internet in the British Columbia Libel and Slander Act, it is necessary to prove publication. 'Publication' is defined as an act that makes defamatory information available to a third party and receipt of the information by a third party in a way that is understood. In this case, there was no evidence regarding how many people - if any - read the allegedly defamatory material or whether they accessed it through the hyperlinks. There is no evidence about how users respond to hyperlinks. As there was no proof that any individual actually accessed allegedly defamatory material from a hyperlink posted by Newton, Deschamps would dismiss Crookes's appeal.
Several areas have been left open by Crookes v Newton. The decision applied to the definition of 'publication' in the context of defamation and not necessarily in other contexts. It is therefore an open question whether this decision will have an impact on the definition of 'publication' under the Copyright Act.(4)
While Crookes v Newton is definitely binding law in British Columbia, it may not be applicable in Ontario. The reasoning of both Abella and Deschamps relied on the fact that there is no presumption of publication for material posted on the Internet under the British Columbia Libel and Slander Act. The Ontario Libel and Slander Act has a similar, but more expansive, set of presumptions.
The relevant provisions of the British Columbia Libel and Slander Act are as follows:
"1. In this Act 'broadcasting' means the dissemination of writing, signs, signals, pictures, sounds or intelligence of any nature intended for direct reception by, or which is available on subscription to, the general public (a) by means of a device utilizing electromagnetic waves of frequencies lower than 3 000 GHz propagated in space without artificial guide, or (b) through a community antenna television system operated by a person licensed under the Broadcasting Act (Canada) to carry on a broadcasting receiving undertaking, and 'broadcast' has a corresponding meaning…
2. Defamatory words in a broadcast are deemed to be published and to constitute libel."(5)
The relevant provisions of the Ontario Libel and Slander Act are as follows:
"1. In this Act 'broadcasting' means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of, (a) any form of wireless radio-electric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or (b) cables, wires, fibre-optic linkages or laser beams, and 'broadcast' has a corresponding meaning…
2. Defamatory words in…a broadcast shall be deemed to be published and to constitute libel."(6)
If the definition of 'broadcasting' in the Ontario Libel and Slander Act is broad enough to encompass a presumption of publication for material posted on the Internet, then it is possible that the bright-line rule that hyperlinks never constitute publication would not apply in Ontario.
Ottawa-Carleton District School Board v Scharf held obiter that material posted on the Internet was not a broadcast.(7) By contrast, multiple decisions by Ontario courts acknowledged it is an open issue whether material posted on the Internet should be deemed to be published under the Ontario Libel and Slander Act.(8)
Since the decision in Crookes v Newton, two Ontario cases considering that decision have been released. In Elfarnawani v International Olympic Committee, Justice Campbell held that:
"Under the Libel and Slander Act, R.S.O. 1990, chap. L.12, defamatory words in a newspaper or in a broadcast are "deemed to be published". However, as the Supreme Court of Canada recently observed in Crookes v Newton, at para. 14, there is "no such presumption in relation to material published on the Internet"."(9)
This observation by the Supreme Court, however, stated the law regarding the British Columbia Libel and Slander Act. As such, it begs the question whether to assume that this observation by the Supreme Court applies to the Ontario Libel and Slander Act.
In Shtaif v Toronto Life Publishing Co Ltd, Justice Matlow held that material posted on the Internet was not a broadcast for the purposes of the Ontario Libel and Slander Act. No evidence had been presented that a website's content had been "received by the public directly" or through "relay stations" as provided for under the Ontario Libel and Slander Act.(10) If expert evidence had been called on this point, it may have indicated that relay stations (known as routers) exist in the Internet's infrastructure.
As such, despite these rulings, it appears that it is still an open question whether material posted on the Internet is 'broadcast' pursuant to the Ontario Libel and Slander Act and is therefore deemed to be published. The policy rationales articulated by Abella regarding the open Internet, however, would mitigate towards courts maintaining the protection of those who hyperlink to allegedly defamatory material.
Finally, hyperlinks that project content on the page automatically, or in a separate frame, with little or no prompting from the reader were expressly not addressed in the decision. As such, it is possible that one of these forms of hyperlink to allegedly defamatory material could constitute publication of that material. When structuring websites, it would therefore be best practice to avoid using these types of hyperlink.
For further information on this topic please contact Jacob Kaufman at Fraser Milner Casgrain LLP by telephone (+1 416 863 4511), fax (+1 416 863 4592) or email ([email protected]).
(1) 2011 SCC 47.
(2) (1728), 1 Barn KB 304.
(3) Crookes v Newton, supra note 1, para 36.
(4) Copyright Act, RSC 1985, c C-42.
(5) Libel and Slander Act, RSBC 1996, c 263, ss 1-2.
(6) Libel and Slander Act, RSO 1990, c L12, ss 1-2.
(7) Ottawa-Carleton District School Board v Scharf, 2007 CanLII 31571 (ON SCJ), para 27.
(8) Bahlieda v Santa, 2003 CanLII 2883 (ON CA) rev'g 2003 CanLII 12856 (ON SCJ); TPG Technology Consulting Ltd v Canada (Minister of Industry and Competition Bureau), 2011 ONSC 4604 (CanLII); Weiss v Sawyer, 2002 CanLII 45064 (ON CA); Warman v Grosvenor, 2008 CanLII 57728 (ON SCJ).
(9) Elfarnawani v International Olympic Committee, 2011 ONSC 6784 (CanLII), para 34.
(10) Shtaif v Toronto Life Publishing Co Ltd, 2011 ONSC 6732 (CanLII), para 19.