Case Summary and Outcome

The Supreme Court of Canada held that a hyperlink in and of itself is never a publication of defamatory material, and that Crookes’ defamation suit should be dismissed because the hyperlinks on Newton’s website to other allegedly defamatory content were not a “publication” of defamatory material. However, if the article had repeated the defamatory material in the article, or if the text of the hyperlink itself repeated the defamatory material, the material could have been considered a “publication” susceptible to the tort of defamation.

Facts

Newton (the defendant) was the owner and operator of a website that published articles on various political issues, including freedom of speech and Internet control. Newton published an article on his website which contained hyperlinks to material that allegedly defamed the claimant Crookes. The hyperlinks linked to content on websites produced independently of Newton’s own cite.

Crookes brought an action claiming that, because Newton linked to allegedly defamatory material in an article published on the Newton’s website, Newton had effectively published the material, even though he had not produced the content.

The trial court analogized the hyperlinks to footnotes in an article, reasoning that footnotes do not constitute “publications,” but rather mere references. The Court of Appeal for British Columbia upheld the trial court’s ruling, also using the footnote analogy. Crookes appealed.

Decision Overview

Abella, J., delivered the opinion of the Court. The issue before the Supreme Court of Canada was whether the defendant Newton had published defamatory material concerning the claimant Crookes by linking to the allegedly defamatory material, even though Newton did not produce the material contained in the hyperlinks.

Justice Abella, writing for the majority of the Court, found that the Crookes’ action should be dismissed. The Court held that merely linking to content does not in itself constitute publication of that content. In order to be considered a publication, Newton’s article would have to repeat the content linked in some form, whether in the text of the article or in the text of the link itself. A hyperlink in and of itself cannot be considered a “publication.”

McLachlin, C.J., and Fish, J., wrote a concurring opinion.

Deschamps, J., dissented. The dissenting opinion advocated for a slightly more inclusive standard: the context of an article should be considered in its entirety, and if the context surrounding the link constitutes an endorsement of the link, the link should be considered a publication.