The risk of being found liable in defamation for hyperlinking to another person’s defamatory publication lingers even after the Supreme Court of Canada decision of Crookes v. Newton, 2011 SCC 47.
Many articles reporting on this recent Supreme Court of Canada decision have limited their commentary to the main ruling of Madam Justice Abella, adopted by five judges, that “a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers [emphasis added].”[i] Given that a plaintiff cannot make out a prima facie case in defamation without establishing publication, commentators have equated this judgment with a finding that no liability will result for hyperlinking to defamatory content.
In doing so, inadequate attention is being given to the concurring reasons of the remaining three Supreme Court of Canada judges which may lead to liability findings against hyperlinkers in cases where the facts are less forgiving.[ii]
Madam Justice Abella suggested that a hyperlinker may only be liable for publication of the defamatory postings made by someone else, if that hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content. This ruling establishes nothing new with respect to liability: if the hyperlinker repeats the defamatory content in his or her text, then of course he or she would be a publisher of the defamatory content.
Madam Justice Abella, for the majority, excused hyperlinkers from long-established principles of what constitutes publication on the basis that hyperlinkers have no control over the defamatory postings to which they link. She found hyperlinking to be excusable from the law of publication because, without hyperlinks (which she characterized as footnotes in the electronic age), the Internet would be like a library without a catalog. She relied on the departure taken by the British Columbia Court of Appeal in Carter v. B.C. Federation of Foster Parents Assoc. (2005), 42 B.C.L.R. (4th) from what she described as the “formalistic application of the traditional publication rule.”[iii] Madam Justice Abella’s judgment did not address how the circumstances in Carter were different: that case involved a reference in the defendant’s hard-copy newsletter to a website on which the allegedly defamatory content was contained among a myriad of other unobjectionable comments.[iv]
Chief Justice McLachlin and Mr. Justice Fish concurred in the result but ruled that the publication of a defamatory statement via hyperlink should be found if the text indicates an adoption or endorsement of the content of the hyperlinked text. If the hyperlinker’s text communicates agreement with the content to which it links, then the hyperlinker should be liable as a publisher of the defamatory content[v]. This finding is consistent with the British Columbia Court of Appeal’s judgment below.
The most considered judgment however is that of Madam Justice Deschamps. Although she stood alone, Her Ladyship’s reasons should not be disregarded because they are buttressed by the long-established jurisprudence on what constitutes the act of publication in defamation law and can accommodate the intricacies of hyperlinking and future developments in Internet law.
Madam Justice Deschamps might as well have told Madam Justice Abella not to throw the baby out with the bathwater:
“Because of the fluidity that characterizes the Internet and the variety in types of hyperlinks, the Court should be particularly reluctant to fashion a bright-line rule. The approach it adopts must ensure that the law is properly attuned to how hyperlinks function in practice and how they evolve in the future. Merely excluding hyperlinks from the scope of the publication rule will hardly make it possible to adapt the law of defamation to technological change.” [vi]
Her Ladyship ruled that “it is inaccurate to equate a hyperlink with, for example, a footnote in a book. A footnote that does not actually reproduce the information to which the reader is being referred does not make that information readily available.”[vii]
Madam Justice Deschamps demonstrated that a test for publication based on the existing jurisprudence can be applied to hyperlinking. The test being: (1.) that there be a deliberate act of making the defamatory information readily available to a third party in a comprehensible form; and (2) that a third party receive and understand the information.
Madam Justice Deschamps appreciated that an act of making defamatory information available can take many forms, including printing a newspaper or book. She referred to the vivid example from the 1937 decision of Bryne v. Deane,  K.B. 818 (C.A.), where a golf course was found to have published a piece of paper posted on premises over which it had complete control. The precise method employed in making the information available is immaterial.
In applying the two components of the publication test to hyperlinking, various factors are to be considered, including the kind of hyperlinking that was used:
“Some, but not necessarily all, of the factors a court can consider are: whether the link was user-activated or automatic; whether it was deep or a shallow link [shallow links simply direct the viewer to the homepage whereas deep links link to a specific page on that site]; whether the page contained more than one hyperlink and, if so, where the impugned link was located in relation to others; the context in which the link was presented to users; the number of hits on the page containing the hyperlink; the number of hits on the page containing the linked information (both before and after the page containing the link was posted); whether access to the Websites in question was general or restricted; whether changes were made to the linked information and, if so, how they correlate with the number of hits on the page containing that information; and evidence concerning the behavior of the internet users.”[viii]
Considering these various factors to determine whether the publication requirement has been met is surely preferable to simply imposing what Madam Justice Deschamps describes as a “bright-line rule.”
The practical reality of strictly upholding Madam Justice Abella’s reasons is that a judgment-proof and perhaps anonymous poster, possibly resident in a foreign jurisdiction and therefore beyond the reach of any practical remedy by a Canadian court, could publish a devastating libel of an entirely innocent person in Canada. Numerous Canadian residents who share the animosity could then maliciously direct numerous people to the defamatory publications with full knowledge that as hyperlinkers they are protected. Hyperlinkers may also attempt to publish anonymously on websites, and then boldly direct others to the anonymous posts, hoping that the Court never identifies them as the original publisher. In such situations, it may take years of litigation to find a new balance in the law of defamation.
Madam Justice Abella’s judgment is also difficult to apply to the intricacies of hyperlinking: how far does one have to go in “repeating the defamatory content to face liability.” Would it suffice to state “the truth about X is here [hyperlink]” in a situation where the hyperlink is a deep link to a derogatory statement about X?
Madam Justice Deschamps fully delved into the issues by not only demonstrating that the existing jurisprudence on publication can successfully be applied to hyperlinkers. Significantly, she also recognized that the defence of innocent dissemination presents itself as an elegant and pragmatic solution to the issues before the Court. This defence, traditionally used by bookstores, libraries, news vendors, etc., is available in circumstances where the defendant had no actual knowledge of the defamatory words contained in the publication, was aware of no circumstances to put him or her on notice to suspect an alleged libel, and committed no negligence in failing to find out about the libel. The end result is that Madam Justice Deschamps identified two safeguards for the innocent hyperlinker: the test of publication discussed above and the defence of innocent dissemination.
We remain of the view that one should hyperlink with great caution.
[i] Para. 44
[ii] The facts in this case were in many respects favorable to the hyperlinker. The defendant did not repeat the defamatory words, or endorse them in any way. The defendant publishes an article on his website entitled “Free Speech in Canada” and referenced the fact that another website operator was being sued in defamation by the plaintiff. The article included a deep hyperlink to the website, OpenPolitics.ca on which allegedly defamatory statements were published, and a shallow link upon clicking on the name of the plaintiff.
[iii] Para. 24
[iv] Carter v. B.C. Federation of Foster Parents Assn.,  B.C.J. No. 192 at para. 51
[v] Para. 48
[vi] Para. 102
[vii] Para. 96
[viii] Para. 110