A recent decision of the British Columbia Court of Appeal is vital to every business that operates a website or publishes material on the Internet. The decision confirms that hyperlinks alone will not implicate a website owner in publishing defamatory material found on the hyperlinked website. But if the website endorses or adopts the defamatory content, or encourages the reader to link to the offending material, then the website owner may face liability, and damages.

In this case a Vancouver businessman was also a sometime member of the Green Party of Canada. His Green Party ties were the subject of an article he claimed to be defamatory. Another person published on his own website an article which referred to the allegedly defamatory article and provided a hyperlink to it. The person did not quote the earlier article, or comment on its content. The businessman sued the website owner for defamation.

A plaintiff in a defamation lawsuit must prove, among other things, that the defendant “published” the defamatory words; that is, played a role in writing, publishing or distributing them. The issue considers both the giver and receiver of the offending material. On one hand, did the defendant participate in disseminating it? On the other, did anyone actually read it?

In this case, the Court of Appeal concluded that just providing a hyperlink to defamatory material is not publication of that material. If a website simply provides a hyperlink, or describes the hyperlinked contents in a neutral manner, then it is not adopting the offending words as its own, and so is not “publishing” them.

However, if a website endorses the content of the hyperlinked material or encourages the reader to click to it, it may be participating in the dissemination of the offending material, and so “publishing” it.

To provide some hypothetical examples:

  • “Click here to learn the truth about Mr. Smith’s history of fraud and corruption” would probably be “publication”.  
  • “As shown here, Mr. Smith’s business practices have been the subject of some (unproven) criticism and litigation” would probably not.

The Court also confirmed that just providing a website address (as opposed to a clickable hyperlink), is not publication of the material on that website.

The plaintiff in a defamation lawsuit must also prove that someone read the offending material. A plaintiff suing in British Columbia must prove that at least one person in the province read it.

In this case the article providing the hyperlink had been accessed 1,788 times. But it was not clear whether any of those who accessed the article were in British Columbia. It was not clear how many of those 1,788 “hits” came from independent and from repeat visits. It was not it clear how many came from humans and from information-gathering Internet “robot” software. Most importantly, it was not clear whether anyone had actually clicked on the hyperlink to the allegedly defamatory article.

In those circumstances, the Court found that the plaintiff had not proved that anyone had actually clicked on the hyperlink and read the offending article. Therefore they had also failed to prove that anyone in British Columbia had actually read the article, so the British Columbia courts had no jurisdiction to hear the lawsuit.

One issue which remains unsettled after this decision is whether a website owner who does not remove defamatory postings after being notified of their potentially defamatory content may be liable for publication of those materials. There are decisions from British Columbia and other jurisdictions that suggest they may be.

This decision provides useful guidance for Internet participants. It rules out the possibility that “publication” of defamatory material flows from the simple act of hyperlinking. But it confirms that each case will turn on its own facts, including the wording, tone and placement of the introduction to the hyperlink. A website owner or manager would be wise to seek legal advice before hyperlinking to a potentially defamatory website. Otherwise they risk findings of publication and liability, just as if they were the author of the offending material.