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The hyperlink case – a licence to defame?

In December 2010, I wrote about the case of Crookes v. Newman. In this case, Mr. Crookes sued Mr. Newman for online defamation because of hyperlinks that Mr. Newman had placed in articles he published online. The hyperlinks, when clicked, took the readers to websites that contained statements that Mr. Crookes claimed were defamatory of him. Mr. Crookes lost at trial and on appeal and took his case all the way to the Supreme Court of Canada.

The question that the Supreme Court was asked to decide was: when someone creates a hyperlink to defamatory content, does he or she effectively “publish” the defamation? This issue is important because, in order to succeed in a case for defamation, a plaintiff has to show that the defamation was “published” by the defendant, meaning that at least one other person has read or viewed the defamation. Lawyers practising in the field of online defamation have long been anticipating this decision and hoping it provides clarity in the law.

The Supreme Court of Canada recently released its decision by holding in favour of Mr. Newman. Although the Court was unanimous in finding against Mr. Crookes, the Court was split on the question it was asked to answer: when does a “hyperlink” give rise to liability for defamation?

Madame Justice Abella, writing for the majority, held that hyperlinks do not give rise to liability for defamation because they do not constitute “publication” of defamatory content. In contrast, Madame Justice Deschamps, in a concurring judgment, held that a finding that hyperlinks do not give rise to liability in all cases is too broad. In her view, in certain circumstances, creating a hyperlink might constitute publication of defamation, thereby giving rise to liability, and that this issue must be determined on a case-by-case basis.

With respect, in my view, Madame Justice Deschamps got it right. Given the nature of the Internet, it cannot be said that in each and every case, a hyperlink does not give rise to liability. Indeed, the majority has given people the ability, with the click of a mouse, to defame one another with impunity, by putting the defamation into the form of a hyperlink.

Consider this scenario as an example: someone sends emails to your co-workers and boss which state, “Check out this important link about X”. The email contains a hyperlink. The co-workers or boss click on the hyperlink and it takes them to another site where defamatory content is posted about you. Had it not been for these emails, your co-workers or boss would likely never have seen the defamatory content. Thus, the person who sent the email is responsible for “publishing” the defamatory content to your co-workers or boss. The majority’s reasons in Crookes mean that your claim for defamation against the person who sent the emails may not succeed. On the other hand, Madame Deschamps’ reasons suggest that a judge might find that the hyperlink constituted defamation in these circumstances. At least with Madame Deschamps’ approach, you would be given your day in court.

Maanit Zemel
Miller Thomson LLP

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security.
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