Can a link amount to defamation?

Thanks to the internet, it is only a matter of moments or rather a matter of clicks, that an event that unfolds in the west is known by all in the east or vice versa. News, whether it is a true story or a mere piece of gossip, spreads like wildfire. What makes this fire all the more wild is the hyperlinking that allows you to navigate from one page to another by simply clicking on linked or hyperlinked text. It is a core, if not the core, functionality of the internet.

In a recent Canadian case, the British Columbia Court of Appeal dealt with a case that posed a question whether an individual posting a hyperlink to defamatory content on another website can be held liable for defamation.

The Case

The plaintiff, Crookes, sued many parties for defaming him through a myriad of articles published on two websites. One such party sued was the defendant, Newton, who owned a ‘free speech site’ at the location that allegedly hosted links to the defamatory content present on the other websites. The links were included as part of an article on the site commenting on defamation law in Canada. It seems the defendant was about to do more than comment on the defamation law in Canada!

The plaintiff in a standard defamation case is required to show the statements at issue are:

  1. defamatory (i.e. have the propensity to tarnish plaintiff’s reputation who is a reasonable member of the community);
  2. referred to the plaintiff; and
  3. were published to a third party.

The Crookes case was centred around the third issue, the publication issue. The two questions connected to the issue that were considered by the Court were:

  1. whether hyperlinking to defamatory content can amount to the presumption of publication; and
  2. whether Newton’s act of hyperlinking amounts to publication of the content by Newton.

Is hyperlinking publication?

With reference to the first sub-issue, it was agreed upon by the Court that the presumption of publication could not be found. The court observed that presumption of publication could not arise because publication would still remain a click away.

In terms of the second sub-issue, the majority of the Court did not find Newton’s hyperlinking amounting to publication. The majority considered that there were two aspects in terms of defamation through publication:

  1. the act of broadcasting the concerned item; and
  2. the receipt of that item by a third party.

Following an earlier Canadian case, the majority noted that providing a hyperlink as a reference does not amount to publishing of the content since the barrier between the article containing the link and the hyperlinked site needs to be abridged by the reader and the publisher plays no active role in this regards. However, the majority did state that where the hyperlink may seem to be promoting the viewing of the defamatory content or adopting its stance (e.g. “X is described at [hyperlink]”), hyperlinking may amount to publication.

The majority also held that it cannot be presumed that any third party clicked the hyperlinks merely by considering the number of clicks on Newton’s article, therein failing the test of receipt by a third party.

The third issue that remained unaddressed in the Court was that Newton had control over the content (including hyperlinks) on his website. He was asked to remove the hyperlinks but he refused to comply.

Do not link before you think

The ruling in Crookes case provides insight on maintaining an equilibrium between the protection of one’s reputation and freedom of speech. Although the case is Canadian, it does provide some indication of how an Australian Court might consider such a case. To add further interest, the decision has been appealed and will be heard before the Supreme Court of Canada on 7 December 2010.

For advice on all aspects of internet law please contact Certus Legal Group.