Supreme Court


Insert of hyperlinks could not amount to publication

Appellant claimed he had been defamed in various articles that appeared on Internet. Respondent operated web site and authored article that hyperlinked alleged defamatory articles. Appellant took position that when hyperlinks created, respondent became publisher of impugned articles found at hyperlinked sites. Trial judge dismissed appellant’s action for defamation on basis that appellant failed to prove publication of defamatory material. He found that hyperlinking did not amount to publication. Majority of Court of Appeal dismissed appellant’s appeal, finding no basis for presumption of publication of hyperlinked articles and mere fact that respondent hyperlinked impugned sites did not make him publisher. Appeal to Supreme Court of Canada dismissed. To prove publication element of defamation, plaintiff must establish defendant has, by any act, conveyed defamatory meaning to single third party who has received it. Form defendant’s act takes and manner in which it assists in causing defamatory content to reach third party are, traditionally, irrelevant. Breadth of activity captured by traditional publication rule vast and recent jurisprudence suggested some acts so passive they should not be held to be publication. Question is whether simple reference, like hyperlink, to defamatory information is type of act that can constitute publication. Reference to other content fundamentally different from other acts involved in publication as does not involve exerting control over content. Communicating something distinguished from merely communicating that something exists. Hyperlinks are, essentially, references. Content of secondary article often produced by someone other than person who inserted hyperlink in primary article. Inserting hyperlink gives primary author no control over content in secondary article. When person follows link they are leaving one source and moving to another. Ease with which referenced content can be accessed does not change fact that, by hyperlinking, individual referring reader to other content. Individuals may attract liability for hyperlinking, however, if manner in which they have referred to content conveys defamatory meaning. Nothing on defendant’s page itself alleged to be defamatory. Insertion of hyperlinks, by itself, could not amount to publication.

Crookes v. Wikimedia Foundation Inc.

(Oct. 19, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33412) Decision at 311 D.L.R. (4th) 647, 181 A.C.W.S. (3d) 389 was affirmed. 206 A.C.W.S. (3d) 640 (71 pp.).

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