Online Speech - News

The Supreme Court of Canada ruled this morning that the online posting of a hyperlink does not constitute a publication of a defamatory statement.  This unanimous decision in Crookes v. Newton upholds online free speech rights, maintaining that an online link will only be defamatory if it actually repeats defamatory material.

In its decision, the Court largely concurred with CIPPIC's arguments at the hearing that a hyperlink merely identifies the location of an article, but does not incorporate the text or in any way adopt it.  Links among websites create the fabric of the web and play a pivotal role in social media as users rapidly share links amongst each other.  The threat of liability for the mere posting of a link would unnecessarily chill the further development of online media and social spaces.  The S.C.C.'s ruling importantly permits internet users to continue sharing links without looking over their shoulders.

CIPPIC filed its factum in Crookes v. Newton, which will decide the fate of the hyperlink in defamation law.  The case, on appeal from the B.C. Court of Appeal, has raised the issue of whether and under what circumstances posting a hyperlink to online content that contains defamatory statements can amount to publication of that content.  The plaintiff, Crookes, argues that posting a hyperlink draws the reader's attention to any defamatory statements contained in the linked article and this is sufficient to impose liability on the poster of the link.  He argues further that, by nature and convention, by posting a hyperlink the author of an article intends to incorporate the linked content into the original article.

CIPPIC has sought leave from the Supreme Court of Canada to intervene in Crookes v. Newton.  The case, on appeal from the B.C. Court of Appeal, has raised the issue of whether and under what circumstances posting a hyperlink to online content that contains defamatory statements can amount to publication of that content.  The plaintiff, Crookes, argues that posting a hyperlink draws the reader's attention to any defamatory statements contained in the linked article and this is sufficient to impose liability on the poster of the link.  He argues further that, by nature and convention, by posting a hyperlink the author of an article intends to incorporate the linked content into the original article.

The British Columbia Court of Appeal has affirmed, in a divided decision, a lower court decision that merely linking to a webpage that may contain defamatory content does not amount to "publication" and so cannot support a claim for defamation.  The majority characterized a browser's active decision to click on a link as a "barrier" between the linking and linked sites that the overcome reader overcomes, not the linking site.