CIPPIC Files Factum in Hyperlinked Defamation Suit

CIPPIC filed its factum [1] in Crookes v. Newton [2], 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 [3] 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.

In its factum [4], CIPPIC argues that, while there is a need to protect reputation in the online world, imposing liability on individuals for posting hyperlinks strikes the wrong balance and will chill free expression and innovation.  The proposed rule will make it the responsibility of all individuals to ensure there is no defamatory content in any underlying content before linking to it.  Yet the purpose of hyperlinks [5] is to act as a reference to further, relevant information.  By merely posting a hyperlink, an author neither adopts nor endorses the linked content.  The author may not even be aware of the defamatory content and, certainly, is often in no position to assess its defamatory impact.  A rule that prevents Facebook and Twitter users from posting to allegedly defamatory material could dramatically change the ways people communicate online as well as the ways in which innovators design future platforms.

• The BC Court of Appeal's judgment [2] in Crookes v. Newton
• CIPPIC's factum [4]
• Crookes' factum [3]