The issue in this case relates to whether hyperlinks that connect to allegedly defamatory material meet the publication requirement for a finding of defamation. The Plaintiff sued the Defendant, who operates a website on which he posted an article called “Free Speech in Canada”, The article contained hyperlinks to other websites that contained allegedly defamatory information about the Plaintiff. All the Justices concurred in the ultimate finding in the case that publication was not proved by the Plaintiff. However, three sets of reasons were provided.
The majority of the Supreme Court of Canada found that a hyperlink, by itself, should never be seen as “publication” of the allegedly defamatory material. The Court found that hyperlinks are similar to footnotes or references in an article and it remains the actual creator of the defamatory words who publishes the words. The Supreme Court held that hyperlinking may result in a finding of publication in the event that the hyperlinkers actually express something defamatory.
Two of the Justices of the Supreme Court proposed a different formulation of the test for publication, stating that a hyperlink should constitute publication if, when read contextually, the text that includes the hyperlink results in the adoption or endorsement of the specific content to which it links. One Justice concurred in the ultimate decision of the Court, finding that publication was not proved, but suggested that the test should be whether the defamatory information is readily available to a third party as a result of the hyperlink. It was held that, in this case, the Defendant did make the defamatory information readily available, but the Plaintiff did not prove that third parties received the information.