On October 19, 2011, the Supreme Court of Canada issued an important decision regarding application of the law of defamation to Internet hyperlinks that lead to defamatory material. In a traditional context, in order to establish the defendant has "published" defamatory content, the plaintiff has to prove that (1) the defendant had, by any act, conveyed defamatory meaning, and (2) that this meaning had been conveyed to a third party who had received it. In Crookes v Newton, 2011 SCC 47, the Supreme Court of Canada revised this rule in order to adjust its application to the Internet, and, more specifically, to hyperlinks.

The facts of the case are simple. Jon Newton owns and operates a website. An item he posted on his website contains hyperlinks to other websites, which, in turn, contain information about Wayne Crookes. Crookes sued Newton on the basis that the hyperlinks he created connected to websites which represented a "smear campaign" against him. Crookes' allegation was that, by merely creating those hyperlinks, Newton was in fact publishing the defamatory information.

The question asked to the Supreme Court was whether hyperlinks that connect to allegedly defamatory material can be said to "publish" that material. The Court's answer was that they do not: "making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content."

The majority based their reasoning on two elements:

  1. 1.Hyperlinks, like footnotes, are content neutral. A hyperlink communicates that something exists, but it does not, by itself, communicate any content.
  2. A hyperlink grants its author no control over the content of the article to which it connects. In fact, this content can and often does change after the link is created.  

To create such an exception, effectively excluding hyperlinks from the scope of the traditional publication rule, is an adequate solution to the novel issues raised by the Internet. To have held otherwise may have created, following the first branch of the traditional "publication" test, a presumption of liability for all persons incorporating hyperlinks on their websites. Such a position would have been perfectly untenable since "[t]he Internet cannot…provide access to information without hyperlinks." As expressed by the Supreme Court, if hyperlinks were, in and of themselves, defamatory publications, "primary article authors would unlikely [have wanted] to risk liability for linking to another article over whose changeable content they have no control." Visibly, this would have impaired the Internet's functioning as a whole.

The Supreme Court's judgment does, however, offer certain limits. Justice Abella's resounding defence of the Internet should not be construed as a free pass for defamation. Although a reference to the existence of content is not publication of that content, "when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, [such content] should be considered to be 'published' by the hyperlinker." This proviso is emphasized by both the Chief Justice and Justice Fish in the test they propose in their concurring judgment: "[p]ublication of a defamatory statement via hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text".

As the rule stands, hyperlinks – mere content neutral references – cannot engage liability for defamation. Nevertheless, considering the majority's proviso and the concurring minority's proposed test, prudence would suggest preceding adding appropriate disclaimers to websites using external hyperlinks. This small effort may help you avoid being held liable for the defamatory content of others as long as you do not adopt or endorse the hyperlinked content as mentioned above.