To hyperlink or not to hyperlink: SCC addresses defamation in hyperlinks in Crookes v. Newton

In the recent decision, Crookes v. Newton, the Supreme Court of Canada considered whether liability for defamation can ensue from hyperlinking to defamatory material.

The court dismissed the appeal and found that Newton had not published defamatory content through hyperlinks. Justice Abella, writing for the majority consisting of six judges, stated the traditional rule used to prove the publication element of defamation would be inappropriate for hyperlinks since it would create a presumption of liability for all hyperlinkers.  She stated that hyperlinks, like references, are fundamentally different from other publications since they communicate that something exists, but do not communicate its content.  She emphasized that hyperlinks require an act of a third party and cannot alter or edit the content.  Furthermore, she stated that the most effective remedy for a plaintiff would lie with the person who actually created and controlled the content, not the person who creates a hyperlink to it.

Chief Justice McLachlin and Justice Fish stated in their reasons that they agreed in large part with the majority, however, diverged on the belief that the combined text and hyperlink might amount to publication of defamatory material in the hyperlink, if the text indicates adoption or endorsement of the content of the hyperlinked text.

Although Justice Deschamps arrived at the same result as the majority, his reasons outlined a different approach consisting of a comprehensive test which asked whether the hyperlinker performed a deliberate act that made the defamatory information readily available to a third party in a comprehensible form.  He criticised the approach of the majority stating that “an approach that focuses on how a hyperlink makes defamatory information available offers a more contextual and nuanced response to developments in communications media than merely excluding all hyperlinks from the scope of the publication rule.”

The court did not address the issue of automatic hyperlinks that differ from the user-activated links used in this case although the reasoning of the majority and the embedded nature of these hyperlinks would suggest that they would qualify as a publication.

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