Although hyperlinks are a useful tool by which online publishers can generate exposure of their own material, they may also subject publishers to the risk of defamation proceedings.  Both the NSW and Victorian Supreme Courts have recently considered whether the inclusion of a hyperlink in an online publication amounts to the publication of that linked article by the linking author - an issue that is significant in circumstances where the linked article contains defamatory material.

Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350

The recent decision of Justice Beech-Jones in Visscher v Maritime Union of Australia (No 6) provides a concise summary of the Australian approach to liability for defamation in relation to material that can be accessed from a website via a hyperlink.  This case involved an online article published by the Maritime Union of Australia (MUA) relating to the decision of Mr Visscher, the master in command of an ocean tugboat, to anchor the boat in the face of a nearby cyclone. MUA's article not only raised various concerns surrounding Mr Visscher's decision, but also contained a hyperlink to an earlier article that expanded on these concerns in a manner conveying defamatory imputations.  Accordingly, it was necessary for the Court to consider whether the inclusion of this hyperlink constituted publication of the preceding defamatory material.

Beech-Jones J found that MUA was, by virtue of the hyperlink, a publisher of the linked article, as its inclusion amounted to an adoption or promotion of its defamatory content that gave rise to an acceptance of responsibility for its publication. His Honour was content to depart from the Canadian Supreme Court decision of Crookes v Newtown [2011] 3 SCR 269 - in which the majority held that a hyperlink was merely a reference to the existence of other content, rather than further publication - on the basis that the decision was, at least in part, influenced by the Canadian Charter of Rights, of which there is no Australian equivalent.

Cripps v Vakras [2014] VSC 110

This is not to say, however, that every hyperlink contained in an online article gives rise to a subsequent publication.  As demonstrated by Justice Kyrou in Cripps v Vakras, and re-affirmed by a later decision of the same Court, consideration must be given to the degree of association between linked articles before they can be deemed a single composite publication.  In this case, two articles by the same author were held to be separate publications as they were written and posted on the internet at separate times, largely dealt with different subject matter and could be read and understood without reference to one another.

Further, as the primary article in question contained seven hyperlinks, of which only one in particular was complained of, it carried no expectation that readers would read all the linked material.  Accordingly, in the Court's opinion, whilst some readers may have clicked on the link to the defamatory article, others would not have done so, with the link simply providing an option for readers who wished to conveniently pursue further reading of separate publications that were somewhat related to the initial article.  This distinction was further enhanced by the fact that the two articles in question were not cross-referenced - with one article linking to the other, but not vice versa - and were therefore deemed not to be mutually interdependent.

Significance of decisions

As can be seen, the context in which hyperlinked articles are presented can be of as much importance as its actual content.  Nonetheless, online publishers should take particular care when including hyperlinks in content posted on their websites, particularly where the linked material contains either known or potentially defamatory imputations.  Such a caution is heightened by the fact that the content of linked materials may often not be under the control of the subsequent publisher, which can be problematic should such materials be amended such that they only later include defamatory imputations.