Supreme Court of Canada

The Full Court of the Canadian Supreme Court recently considered a simple question, but one which will have a profound impact on communications in the common law world: Is a hyperlink a “publication” for the purposes of defamation law?

While the case related to a relatively small internet publication, 9 Judges sat and as well as the parties, a raft of Canadian organisations intervened. The organisations represented civil liberties, public interest, internet policy, newspapers, magazines, journalists, writers and publishers.

The circumstances of the case are these. Wayne Crookes, the plaintiff, is a businessman in Vancouver and a member of the Green Party of Canada. He brought a number of cases against a range of different defendants, alleging that there existed a smear campaign against him and a number of other members of the Party.

The defendant, John Newton, owned and operated a website in British Columbia that commented about various issues, including free speech on the internet. One of the articles posted was called “Free Speech in Canada” and the article had hyperlinks to other websites. Those other websites contained information about Crookes, which he said was defamatory. Nothing on the defendant’s own website was defamatory of Crookes. This is what was written:

“Under new developments,…. I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.

We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future. [A.R at p125].”

Of the hyperlinks, the first one was “shallow”, meaning that it would take the reader to a webpage where articles were posted, and the second one was “deep”, which took readers directly to the article.

The plaintiff asked for the hyperlinks to be removed and the defendant refused. The plaintiff then sued Newton for defamation in British Columbia, but did not allege that anything on Newton’s site was defamatory, just the hyperlinked material. While there was evidence that Newton’s article was viewed 1,788 times, there was no evidence whether anyone had hyperlinked the articles from the defendant’s website.

At trial, Kelleher J found that in the absence of any evidence that anyone other than Crookes used the links to read the articles, there could be no finding of publication. So the plaintiff lost and appealed. In the Court of Appeal, Saunders JA with whom Bauman JA concurred, dismissed the appeal. They agreed with the trial judge and concluded this: reference to an article containing defamatory comments without repetition of the comments themselves is analogous to a footnote or a card index in a library and should not be found to constitute republication of the defamation. Prowse JA dissented and held that the content of the article encouraged or invited readers to click the links and therefore, there was publication. So the plaintiff lost again, but he was not done. Off to the Supreme Court.

Canadian Supreme Court judges

The majority judgment (6 judges out of 9) referred to numerous ancient cases about publication, and asked whether those principles ought to be applied to hyperlinking (See [18]). Cases such as one in 1728, when a printer’s servant, without knowing the contents of a publication, was held liable for publication after simply “clamping down” on the printing press. Harsh. Then a further case in 1894 when someone pointed at a sign and was held to have published that sign. Still a bit harsh.

So the judges acknowledged that the publication rule captured a whole range of conduct and the innocent dissemination defence was the only saviour for those who played a secondary role in the distribution system. Parties such as news agents, booksellers and libraries were all prima facie publishers, even if the material was never read [19]-[20]. Should this be applied to the internet?

The judgment concluded that to apply such a rule to hyperlinkers created a presumption of liability for all hyperlinkers and that was “untenable” [25]. The internet could not work without hyperlinks. At [36]:

“The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential `chill’ in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.”

Not entirely sure why the hole of modernity had to be hexagonal, but nevertheless, one moves on. The judgment concluded this:

•  A hyperlink by itself, should never be seen as “publication” of the content to which it refers. Only when a hyperlinker presents contents from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker [14], [42];
• hyperlinks are, in essence, references which are fundamentally different from other acts of publication [27], [30], [42];
• When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster is the person who is publishing a libel [29].

2 further judges (McLachlin CJ and Fish J) proposed a different test, namely that a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes an adoption or endorsement of the specific content it links to (para [50]). Meanwhile, the last judge (Deschamps J) held that the ordinary tests of publication still applied to hyperlinking, in the sense that, the plaintiff had to establish that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in comprehensible form. Further, the Court should emphasise that not every act, only deliberate acts, can lead to liability for defamation (59).

So all in all, the appeal was dismissed and hyperlinkers can rest easy (a little). One small step for Internet Man, one giant leap for Internet Mankind.