Crookes v. Newton (Defamatory Liability for Hyperlinking)

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, 2011 SCC 47 [1] upholds online free speech rights, maintaining that an online link will only be defamatory if it actually repeats defamatory material.

In its factum [2], 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 [3] 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 Court's ultimate decision largely concurred with CIPPIC's arguments 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.

In this case, Mr. Crookes sued Mr. Newton for defamation after he refused to remove a pair of links on his website. These links pointed to materials elsewhere on the web that he alleged were defamatory. The materials were not authored by Mr. Newton, nor even located anywhere on Mr. Newton's site -- the only connection between the materials and Mr. Newton was the hyperlink on his website. Thus, after determining that a mere hyperlink does not constitute defamation, the Court dismissed this appeal. There is no liability for posting such hyperlinks nor any obligation to remove them.

Resources

The BC Court of Appeal's judgment [4] in Crookes v. Newton
CIPPIC's factum [2]
CIPPIC's Factum in its Motion for Leave to Appeal [5]
Crookes' factum [6]