The Supreme Court of Canada’s decision in Crookes v Newton 2011 SCC 47, written up here for Inforrm by Paul Schabas and Jon Goheen, has been hailed as a victory for free speech online. The judgment offers the first definitive answer in the common law world to the question of whether linking to defamatory material online attracts liability for the publication of that material. That answer is a resounding and seemingly definitive ‘no’.

The Defendant’s site, and one of those he linked to, were themselves concerned with freedom of expression and the internet and, on the facts of the case, the decision is undoubtedly to be welcomed: the Defendant’s links were studiedly neutral in content, and the Plaintiff’s attempts to bring a mere link within the notoriously broad definition of publication which exists in Canadian and English law would have restricted the way the internet facilitates access to information. As Abella J put it, giving the reasons of the majority:

“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”

The principle of interconnectedness, of which hyperlinking is the main manifestation, is, of course, central to how the internet works. As well as underpinning the creation and day to day use of the medium, linking, particularly to one’s sources, is increasingly seen as best practice by journalists keen to make clear where their material comes from, and by webmasters eager to make their sites user-friendly and visible via Google search. Those involved in the nuts and bolts of online publication, and the law surrounding it, will sleep more easily in their beds in the knowledge that a link itself cannot be the basis for the publication of defamatory content to which it refers.

However, the reasons of the majority in this case should be treated with caution. They set out a bright line rule – that a link by itself should “never” be seen as publication of the material to which it refers – that seems too simplistic. Both their decision, and much of the reporting and analysis, reflect a sense that the internet, and the publishing techniques and technologies it has propagated, are inherently benign. But the practical effects of links, and the intentions of those who make them, are hugely variable. Abella J said that references are distinguished from other kinds of publication, being merely “ancillary” to the original publication of the material referred to. This distinction established, she stated that links are themselves references, which give the person making them no control over the material linked to, and do not in themselves communicate its content. They are “content neutral”. But the analogy between a link and a reference in print, such as a footnote, is inexact. Such references are not all alike, and the diversity and rapid evolution of technology online means that links are becoming less like digital ‘footnotes’ all the time.

The reasons of the other judges in the case acknowledge some of the subtleties involved more fully: as Schabas and Goheen point out, McLachlin CJ and Fish J proposed a slightly different approach to the question of when a link constitutes publication, suggesting that liability should be found where “adoption or endorsement of the contentis indicated. Deschamps J was in a minority of one, but her detailed reasons paid closer attention to the effect of the link and the intention of the linker, and to existing jurisprudence in Canada and England. Her judgment was that the blanket exclusion of references, and by extension, hyperlinks

“disregards the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.”

The judge proposed that publication should be found to take place where content is made “readily available” to a third party and that not every act, “but only deliberate acts”, can lead to liability. She said that a focus on how a link makes information available

“offers a more contextual and more nuanced response to developments in communications media than merely excluding all hyperlinks from the scope of the publication rule.”

This focus on deliberate acts has, as Deschamps J said, already been applied in relation to the Internet in this jurisdiction (see, for example, Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765 (QB)). This English authority and others she mentions indicate an existing need to show a deliberate effort to make information available before liability is found; this already offers ample protection to ISPs, search engines and other ‘innocent’ linkers.

A finding that the defamatory material has deliberately been made readily available by a hyperlinker would still not, from Deschamp J’s perspective, be sufficient to prove publication. The plaintiff must still show that the information has been read and understood by a third party, and must adduce direct evidence or ask the court to make an inference on the point. Where this hurdle has been jumped, there would still be defences available, several of which the Defendant, Mr Newton, could have deployed.

The explanation of the law surrounding links and defamation outlined by the minority is more appealing than the majority’s black and white view, but the decision as a whole seems to ignore the fact that linking by itself can be understood as inherently an expression of approval. As Google says in its guidance on page ranking in search results,

“Your site’s ranking in Google search results is partly based on analysis of those sites that link to you. The quantity, quality and relevance of links count towards your rating.”

Authority online is not, like its real world equivalent, something which develops in the minds of a select group of experts or scholars; rather, it is built on links (amongst other things) and leads directly to visibility, via search and the associated page views. This visibility can, in turn,  increase readership and associated advertising revenues, and see material feed into other content, including journalism and Wikipedia entries. A mere link without any expression of approval from, for example, the home page of a major news site could offer a deliberate boost to a web page’s authority, and lead to it becoming a top result for a particular search (such as an individual’s name). Any decision on links and their significance which ignores both this vital relationship with automated search results and the qualitative differences between different kinds of link lays itself open to challenges in the future.

Gervase de Wilde is a student barrister and former journalist at the Daily Telegraph