In the case of Crookes v. Newton, Justice Rosalie Abella writing for the majority of the nine-judge panel, states: “Hyperlinks are, in essence, references, which are fundamentally different from other acts of ‘publication.’
“A hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. 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,” says the decision.
While dissenters Chief Justice Beverly McLachlin and Morris Fish generally agree with Abella’s ruling, they differ on the heart of the matter saying: “However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.”
The case involves Wayne Crookes, the president and sole shareholder of West Coast Title Search Ltd., who brought a series of lawsuits against those he claimed were responsible for a “smear campaign” against him and other members of the Green Party of Canada in articles published on a number of web sites in 2006.
Jon Newton has a B.C.-based web site containing commentary about various issues, including free speech and the Internet. One of the articles he posted on it was called “Free Speech in Canada,” which contained hyperlinks to other web sites, which in turn contained information about Crookes.
At both the trial and appellate level, the courts ruled the hyperlinks did not constitute publication of the impugned content.
Abella notes in her analysis that hyperlinks are essentially references. “Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content,” she writes.
She goes on to point out that: “The Internet cannot . . . provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.”
In the end, Abella says this ruling does not necessarily apply to all types of links on the Internet, particularly as it is constanlty changing.
“The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.”