All hyperlinking is not ‘fair game’

All hyperlinking is not ‘fair game’
Generally, someone is prima facie liable for defamation when they publish, to a third party who understands them, words concerning the plaintiff that have a tendency to lower the reputation of the plaintiff in society. Then the onus shifts to the defendant to establish one of the defences, such as justification (truth), fair comment (opinion), responsible communication on matters of public interest, etc. From the perspective of defamation liability risk, the Internet and social media are very dangerous places.
In Crookes v. Newton, released Oct. 19, the Supreme Court of Canada considered for the first time in the 16 years since the Internet first became widely available, whether or not the act of creating a hyperlink from one web site to another web site containing defamatory information constituted “publication,” making the hyperlinker liable along with the author of the defamatory web site.

The traditional “publication rule” was that any act that had the effect of transferring the defamatory information to a third party constituted “publication” and fulfilled the publication element of the tort of defamation. This could be verbally, in writing, by “dramatic pantomime,” or otherwise — any act. The range of conduct that could constitute publication was historically quite vast. Anyone who repeated and published the defamatory information was jointly liable for defamation with the original author, just by passing it on.

Progressively, Justice Rosalie Abella, writing for the majority, held that “[s]trict application of the publication rule in these circumstances [hyperlinking on the Internet] would be like trying to fit a square archaic peg into the hexagonal hole of modernity.” The majority concluded that a “shallow” or “deep” hyperlink, by itself, does not constitute publication and that the hyperlinker is not liable for linking to defamatory content. However, this does not mean that all hyperlinking is “fair game” and will never affect liability or damages.

The majority went on to hold that a hyperlinker will still be liable for defamation “if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory. . . . This might be found to occur, for example, where a person places a reference [the hyperlink] in a text that repeats defamatory content from a secondary source. . . . Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker.”

This means that hyperlinkers still have to be concerned with the context in which the hyperlink is made. The hyperlink alone will not attract liability, but, combined with the words surrounding it, it might.

Had it not been for the dissenting decision of Chief Justice Beverley McLachlin and Justice Morris Fish, I would have thought that a hyperlinker’s express adoption or endorsement of defamatory hyperlinked material could be “presenting content from the hyperlinked material in a way that actually repeats the defamatory content”; conduct that the majority said would attract liability. But McLachlin and Fish found themselves in dissent because that was their view: “the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of the defamatory statement via hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content.” [emphasis in original]

A distinction is therefore made between the adoption or endorsement of the defamatory material and repeating it. This indicates that the majority was speaking about conduct even closer to a literal repetition of the linked-to material before publication and liability will be established.

The Supreme Court only considered “shallow” or “deep” hyperlinks, which require the user to actively click on the hyperlink in order to access the linked web site. The court was clear that it was leaving for future consideration the same issues as they relate to evolving technology such as automatic hyperlinks — links that automatically display other content with little or no action by the user. It is my view that the more automatic the display of the linked information, the closer we get to publication. At least until the issue is considered in future cases, there is still liability risk associated with the use of automatic hyperlinks and the like.

Hyperlinking will not by itself create liability, but it is still likely relevant to important issues like malice and damages. A finding of malice on the part of the defendant defeats several defamation defences. Plaintiffs will likely argue that a defendant’s hyperlinking to other defamatory postings is evidence that she or he was acting maliciously. A defendant who is found liable and who has hyperlinked to other defamatory postings may find the damages awarded against him or her increased as a result.

There is danger in only reading a 140-character ‘tweet’ about this decision. It cannot be said that all hyperlinking is “fair game.” The context in which a hyperlink is made may still attract liability. The Supreme Court has not yet addressed automatic links, pop-ups, and similar technology. And hyperlinks may still get a defendant into trouble by evidencing malice or having the effect of increasing the damages award.

Michael C. Smith is a partner in the Toronto office of Borden Ladner Gervais LLP and is the Toronto regional leader of the firm’s product liability, national transportation, and maritime groups.

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