The Supreme Court of Canada’s widely anticipated ruling on the Crookes v. Newton case found that hyperlinking does not constitute publication, unless a number of circumstances are satisfied. The decision to dismiss the appeal of Wayne Crookes, who sued blogger Jon Newton for creating two links to a page with defamatory content about him, somewhat clarifies what has been a muddy issue for Canadian bloggers and webmasters.
While Canadian bloggers rejoice, though, a number of factors in this particular case should be taken into consideration. This ruling does leave a lot of room for similar cases to end quite differently and should not be seen as carte blanche for online publishers.
Crookes had appealed a B.C. judge’s decision that hyperlinks are analogous to footnotes and offering access to defamatory content doesn't mean the publisher endorses the content. The provincial judge found that he could not produce evidence that someone else had actually read the defamatory content after clicking a link on Newton’s site to access it, despite the number of hits on the website in question.
The Supreme Court, in their ruling, found that hyperlinks cannot be subjected to the same laws that govern traditional publication. To do so would seriously restrict the flow of information and freedom of expression online. A link alone should never be considered publication of the content to which it points, the judges ruled. The ruling lists a number of factors that led to the decision:
Newton did not repeat on his page the defamatory content on the linked page. The first link was shallow and therefore didn’t make the defamatory content easily accessible. Though the second, deep link made the content easily accessible, Crookes couldn’t prove anyone had actually read it.
What This Means for Canadian Webmasters Going Forward
As each of the judges present weighed in on the ruling and at times seemed to contradict or disagree with one another, it is likely this issue will come up again in the Supreme Court, should the circumstances be different.
Two judges warn that a link should constitute publication if the anchor text “constitutes adoption or endorsement of the specific content it links to.”
The written report of six judges advises that if the hyperlinker actually repeats the defamatory content on their own page, they should be considered the publisher as much as the person whose content they are linking to.
Another advises that a blanket exclusion of hyperlinks from common publication law is insufficient and that all references (footnotes, hyperlinks, etc.) cannot be treated the same. In future cases, a plaintiff must establish that the person who created the link “performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form.”
Interestingly, they did find that Newton’s deep link to defamatory content was a deliberate act. What saved his skin was that the second element of common publication law was not satisfied; there was no proof that his link actually caused a third person to read the defamatory content.
Freedom of speech and online publication organizations are rejoicing, though this may be premature. This case, while a victory for Newton, does leave a lot of material for plaintiffs in future defamation via hyperlinking cases to go on. It doesn’t prevent prospective plaintiffs from filing similar suits, depending on the specifics of their situation.
Disclaimer: The author of this piece is not a lawyer and this is not intended as legal advice; you are advised to seek the counsel of a legal professional.