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Crookes v. Newton

Closed Expands Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    October 19, 2011
  • Outcome
    Dismissed, Remanded for Decision in Accordance with Ruling
  • Case Number
    [2011] S.C.R. 269
  • Region & Country
    Canada, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Civil Law
  • Themes
    Defamation / Reputation
  • Tags
    Internet, Civil Defamation, Publisher, Websites, On-line Expression

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Case Analysis

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.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This decision protects online content producers from tort claims in defamation by clarifying that hyperlinking to potentially defamatory material is a “reference” rather than a “publication” of the material on the hyperlinking site.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Can., McNichol v. Grandy, [1931] S.C.R. 696
  • Can., Carter v. B.C. Fed'n of Foster Parents Ass'n, [2005] B.C.A. 398
  • Can., Grant v. Torstar Corp., [2009] 3 S.C.R. 640
  • Can., Gaskin v. Retail Credit Co., [1965] S.C.R. 297
  • Can., Stanley v. Shaw, [2006] BCCA 467
  • Can., Hiltz and Seamone Co. v. Nova Scotia, 164 N.S.R. (2d) 161 (1997)
  • Can., Lambert v. Thomson, [1937] O.R. 341
  • Can., Pullman v. Walter Hill & Co., [1891] 1 Q.B. 524
  • Can., Spike v. Golding, [1895] 27 N.S.R. 370
  • Can., Soc'y of Composers, Authors & Music Publishers v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427
  • Can., Vizetelly v. Mudie’s Select Library, Ltd., [1900] 2 Q.B. 170
  • Can., Sun Life Assurance Co. v. Dalrymple, [1965] S.C.R. 302
  • Can., Dell Computer Corp. v. Union des Consommateurs, [2007] 2 S.C.R. 801
  • Can., Hill v. Church of Scientology, [1995] 2 S.C.R. 1130
  • Can., WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420
  • Can., Barrick Gold Corp. v. Lopehandia, [2004] 71 O.R. 3d 416
  • Can., Botiuk v. Toronto Free Press Publ'g Ltd., [1995] 3 S.C.R. 3
  • Can., Butler v. Southam Inc., 197 N.S.R. (2d) 97 (2001)
  • Can., Malhab v. Diffusion Métromédia CMR Inc., [2011] 1 S.C.R. 214

Other national standards, law or jurisprudence

  • U.K., “Truth” (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997
  • U.S., Polson v. Davis, 635 F. Supp. 1130 (D. Kan. 1986)
  • U.S., Crain v. Lightner, 364 S.E.2d 778 (W. Va. 1987)
  • U.K., Bunt v. Tilley, [2006] EWHC (QB) 407
  • U.K., Metro. Int'l Sch. Ltd. v. Designtechnica Corp., [2009] EWHC (QB) 1765
  • U.S., Klein v. Biben, 69 N.E.2d 682 (N.Y. 1946)
  • U.S., MacFadden v. Anthony, 117 N.Y.S.2d 520 (1952)
  • U.S, Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997)
  • U.S., Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006)
  • U.S., Reno v. ACLU, 521 U.S. 844 (1997)
  • U.K., Buchanan v. Jennings, [2004] UKPC 36
  • U.K., Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116
  • U.S., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Canada is a common law country. Canada’s lower courts will be bound by the Supreme Court’s decision concerning the status of hyperlinked material in this case.

The decision was cited in:

Official Case Documents

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