Should defamatory material accessible by hyperlink from a blog be taken to have been incorporated as part of the blog?  That question was raised last year in Ali v. Associated Newspapers Inc., [2010] EWHC 100 (QB).  In that case, Mr. Justice Eady suggested in obiter that it was unlikely that a general rule of thumb would be adopted, and that the question would depend on the circumstances of the particular case.

The Supreme Court of Canada Crookes v. Newton, 2011 SCC 47, has just answered the question posed by Mr. Justice Eady and categorically held that, in Canada, creating a hyperlink to defamatory material does not constitute a re-publication of the libel.  The court held that a hyperlink creator cannot be found to have published the libel unless they themselves have generated or repeated the  defamatory content.  In doing so, the court established an immunity for bloggers and other Internet authors for hyperlinking to defamatory content.

Facts

A number of anonymous Internet articles were posted as a “smear campaign” against Wayne Crookes.  Mr. Crookes commenced a series of actions in Canada against the alleged authors of the defamation and the various intermediaries and Internet servers by which the defamatory articles were posted, including Google, Yahoo!, Wikipedia and Myspace.

Jon Newton published a website article on free speech and defamation law in Canada, and referenced the legal actions commenced by Mr. Crookes.  Mr. Newton’s article did not express an opinion regarding Mr. Crookes and did not quote or comment on the alleged defamation.  However, embedded within Mr. Newton’s article were two hyperlinks to the defamatory articles.

Mr. Crookes demanded that Mr. Newton remove the hyperlinks.  When he refused, Mr. Crookes commenced a lawsuit against him in the Supreme Court of British Columbia, alleging that Mr. Newton was liable for having published the defamation.

Lower Court Decisions

Mr. Newton successfully applied to dismiss the claim by way of a summary trial, which dismissal was upheld by the British Columbia Court of Appeal.

The trial judge and a majority of the British Columbia Court of Appeal agreed that creating a hyperlink to words that are defamatory is not a re-publication of those words.  Rather, they likened a hyperlink to a footnote or other reference whose purpose is to direct the reader to additional material from a different source.  Since a third party would need to make a conscious decision and take action to review the material, it could not be said to have been published by the hyperlink creator.

The trial judge did not say that hyperlinking could never make a person liable for the contents of another website.  Rather, he suggested that a different conclusion might have been reached had Mr. Newton written “the truth about Wayne Crookes is found here” and the “here” contained a hyperlink to the specific defamatory words.

The majority of the British Columbia Court of Appeal agreed with the trial judge’s contextual analysis and commented that the circumstances of the case could lead to liability if the particular hyperlink served as an invitation or encouragement to view the hyperlinked site or was an adoption of the defamatory words.

The Supreme Court of Canada Decision

Justice Abella, writing for six of the nine judges of the Supreme Court of Canada, equated a hyperlink with a footnote or any other neutral reference.  She agreed with earlier American and Canadian cases that  a “reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication”.  References of that nature direct the reader to additional material from a different source.  Since a reader would need to make a conscious decision and take action to review the material, the hyperlink creator should not be considered to have published that material.

Justice Abella was concerned that imposing potential liability on hyperlink creators would impair the flow of information on the Internet, reducing freedom of expression.  As such, she held that hyperlink creators could only be found liable where they use references in a manner that in themselves convey a defamatory meaning.  In other words, unless the hyperlink creator has directly libelled the plaintiff, there will be no cause of action.

In short minority reasons, Chief Justice McLachlin suggested that a more contextual approach was required.  Referring to past cases where courts have held liable persons who write, repeat or approve of defamatory statements, the Chief Justice articulated a test whereby publication could be found if the combination of the text and the hyperlink indicated an adoption or endorsement of the defamatory content.

The reasons of the Chief Justice help to clarify the decision of Justice Abella.  According to the majority, virtually any text accompanying a hyperlink to defamatory material will not lead to liability unless the text itself is defamatory.  Even where a party indicates an unequivocal and positive adoption of the libel, as in the example given by the trial judge, there will be no defamation.

Conclusion

The Crookes v. Newton decision should deter many potential libel actions against bloggers and Internet forum operators in Canada, who can now rest assured that they will not be responsible for links to defamatory material unless they repeat the defamation or author new defamation.

This is a significant break from earlier Canadian and other common law jurisprudence, where persons who have expressly adopted or endorsed defamatory materials have been held to have also “published” the libel.  Certainly the contextual approach suggested by the Chief Justice would be more consistent with past precedent and with Mr. Justice Eady’s comments in Ali.  It remains to be seen whether other common law jurisdictions will adopt the new Canadian categorical approach and grant an immunity to bloggers for hyperlinked content or whether they will adopt a more fact-dependent approach.

As a postscript, we note that significant changes in the law can have broad repercussions.  Justice Abella’s reasoning on hyperlinks could be applied to other references to defamatory material, printed or otherwise.  If so, people would be free to reference and endorse defamatory materials without civil liability, so long as they do not repeat the libel themselves.  Whether the decision is applied beyond the Internet context remains to be seen.  However, it is now an open question in Canada.

Paul Schabas and Jon Goheen, of Blake, Cassels & Graydon LLP, Toronto and Vancouver, Canada. 

The authors were counsel (with Roy Millen) to the British Columbia Civil Liberties Association, an Intervener in the Supreme Court.