Thursday, October 20, 2011

Canada High Court Says Hyperlinking Not Publishing in Libel Context

Supreme Court of CanadaImage via WikipediaIn its 72-page opinion in Crookes v. Newton (2011 SCC 47), The Supreme Court of Canada ("SCC") this week unanimously ruled that hyperlinking to online defamatory content is not the same as publishing the defamatory statements.

Likening hyperlinks to footnotes that communicate that something exists but do not communicate the content of that something, the nine-member SCC panel struck a blow for Internet freedom, allaying concerns of a chilling effect on online communicators fearful of being liable for using hyperlinks on their Web sites. Writing for the majority, Madam Justice Rosalie Abella said: "'Hyperlinks are, in essence, references, which are fundamentally different from other acts of 'publication,"' according to an article in Canadian Lawyer magazine.

"The Internet cannot, in short, provide access to information without hyperlinks," Justice Abella wrote. "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," she noted in the majority opinion.

The SCC was quick to point out, however, that an individual who presents defamatory hyperlinked content in a manner that repeats the offensive material may be viewed as publishers susceptible to a libel claim. The case arose from a 2006 post by defendant Jon Newton on his Web site that linked to other articles that the plaintiff claimed defamed him. Former Green Party Campaign Manager Wayne Crookes alleged he and his company, West Coast Title Search Ltd., were subjects of a smear campaign and sued Newton after the defendant refused to remove hyperlinks to the allegedly offensive articles.

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