2011 October 19

Crookes v. Newton, 2011 SCC 47

The Supreme Court of Canada dismissed an appeal from a decision of the British Columbia Court of Appeal [2009 BCCA 392] which upheld a trial judgment [2008 BCSC 1424] which dismissed an action for libel based on two hyperlinks created by the defendant on his own website. The plaintiff sued on the basis that hyperlinking to defamatory material constituted publication of that material. “One [of the two hyperlinks] was a ‘shallow’ hyperlink, which takes the reader to a webpage where articles are posted, and the other was a “deep”hyperlink, which take the reader directly to an article. … Both shallow and deep hyperlinks require the reader to click on the link in order to be taken to the content.” The defendant’s webpage had been viewed 1,788 times but there was no evidence whether either of the two hyperlinks had been clicked on or followed.

Abella J. (Binnie, Charron, Rothstein and Cromwell JJ concurring), held that there is no presumption of publication arising from posting material on the Internet and that hyperlinks that connect to allegedly defamatory material cannot be said to “publish” that material.

Abella J. agreed with the approach taken by the BC Court of Appeal in Carter v B.C. Federation of Foster Parents Assn., 2005 BCCA 398, that merely referring to an article containing defamatory comment without any repetition of the comment itself should not be found to be a republication of the defamatory comment. “Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page…In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. … The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.”

Abella J. considered that subjecting hyperlinks to the traditional publication rule would have the effect of “seriously restricting the flow of information and … freedom of expression” and potentially “chill” how the Internet functions.

On the subject of damage to reputation caused by internet libel, Abella J. stated:

[37]         I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments. It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia 2004 CanLII 12938 (ON CA), (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64:

Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie.” The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse. [Blair J.A.’s emphasis removed.]

Abella J. left open the possibility, however, that links that automatically display other content may constitute “publication.”

[43]         I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.

Chief Justice McLachlin and Fish J. agreed substantially with the majority but proposed a different test for determining when a hyperlink constitutes publication of defamatory matter to which it links. “…[A] hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” “Adoption or endorsement of the content accessible by a link in the text can be understood to actually incorporate the defamatory content into the link. Thus the content of the text comes to include the defamatory content accessed by the hyperlink. The hyperlink, combined with the surrounding words and context, ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”

In a separate lengthy judgment, Deschamps J. disagreed with a blanket exclusion of hyperlinks from the scope of the publication rule, concluding that publication is demonstrated only where the plaintiff can establish on a balance of probabilities that the defendant performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form. In this formulation of the test, it would be a question of fact whether defamatory information is readily available.