On October 19th, the Supreme Court of Canada released its decision in Crookes v. Newton, unanimously upholding the British Columbia Court of Appeal decision that merely providing a hyperlink that connects to allegedly defamatory material will not itself be considered a publication of that material.
Jon Newton owns and operates a website to which he posted an article containing hyperlinks to other articles containing allegedly defamatory information about Wayne Crookes. Crookes brought an action against Newton on the basis that the hyperlinks connected users to the allegedly defamatory material and that, by posting the hyperlinks, Newton had published defamatory information.
In order for a defamation action to succeed, defamatory material must have been published. To prove publication, a plaintiff must establish that the material has been communicated to a third party and that the third party has received the message. The issue raised in this case was whether the posting of a hyperlink to defamatory material could be considered communication of that material and thereby constitute publication.
Posting hyperlinks as mere references does not constitute publication
A hyperlink was defined in the decision as “a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information”. Justice Abella considered hyperlinks analogous to references or footnotes in that they may be inserted with or without the knowledge of the operator of the site containing the secondary article and give the primary author no control over the content in the secondary article. Although both hyperlinks and references communicate that something exists, they are content neutral and do not control the content to which they refer. In addition, they both require some act by a third party before access to the content is provided. Accordingly, the Court found that “making reference to the existence and/or location of content by hyperlink, without more, is not publication of that content”.
Hyperlinking may amount to publication under certain circumstances
Although there was unanimous consent that mere hyperlinking to defamatory information would not, by itself, constitute publication of that material, the concurring judgments considered under what circumstances hyperlinking to defamatory material may constitute publication. Justice Abella found that where a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, that content may be considered published.
Chief Justice McLachlin and Justice Fish noted that a combination of text and a hyperlink may amount to publication of defamatory material if the text indicates “adoption or endorsement” of the hyperlinked text. They held that where the text “communicates agreement” with the linked content, the hyperlinker should be liable if that content is defamatory.
Justice Deschamps noted that hyperlinking to defamatory content could constitute publication if, by a deliberate act, the hyperlinker makes the defamatory information readily available to a third party and if that third party receives and understands the information. Justice Deschamps held that an act is “deliberate” if the hyperlinker plays more than a passive instrumental role in making the information available. The Justice provided a number of factors for a court to consider in determining whether hyperlinked material is “ready available”, including whether the hyperlink is user-activated or automatic, whether it is a shallow or deep link and whether the linked information is available to the general public (as opposed to being restricted). Although Justice Deschamps found that Newton’s posting of the hyperlinks was a deliberate act and that one of the hyperlinks in question was a deep hyperlink, making the content readily available, because there was no evidence that the allegedly defamatory material was viewed by a third party, Justice Deschamps concluded that there was in fact no publication and that the defamation action must therefore fail.
The Supreme Court has previously expressed its strong support for the importance of the Internet to the flow of information in contemporary society (see, for example, SOCAN v. Canadian Association of Internet Providers,  2 S.C.R. 427). Toward the end of the majority decision, Justice Abella offers another passionate affirmation of that view, along with some specific comments about the centrality of hyperlinks to that flow:
The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.
Strong words like this will no doubt make it tempting to draw sweeping conclusions about the impact of this decision. However, it would be dangerous to conclude that Crookes v. Newton amounts to a “get out of jail free” card for defamation on the Internet. For example, the decision quite clearly leaves the door open to the prospect of liability where the hyperlink is presented in a way that suggests adoption or endorsement of the content of the hyperlinked text, as well as to the likelihood that different technologies could give rise to different results in future cases.
It will also be important to exercise caution in attempting to extend the logic of this decision too far into other areas of law. For example, while the decision makes clear that simply hyperlinking to defamatory content does not itself constitute publication of the defamation, it is very possible that hyperlinking to content that infringes copyright might itself infringe copyright, either directly or by “authorizing” infringement by others. The decision of the British Columbia Supreme Court in Century 21 Canada v. Zoocasa, 2011 BCSC 1196, also underlines the risks of providing hyperlinks to content located on webpages whose terms and conditions prohibit linking.
In other words, Crookes v. Newton is by no means the last word on the legal implications of hyperlinking in Canada. It does, however, establish important guidelines that should be considered very closely by anyone whose online activities rely on hyperlinks to communicate information.