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To hyperlink or not to hyperlink – That is the question

This week, the Supreme Court of Canada heard arguments on a question that is unique to Canadian law: if you place a hyperlink in your website or blog, and that hyperlink leads to a website that contains defamatory statements about another person, are you liable to that person for defamation?

Mr. Wayne Crookes sued a number of authors of online websites that he alleged to have contained defamatory statements about him. Mr. Jon Newton, a self-described freelance journalist, wrote a blog titled “Free Speech in Canada”, which discussed Mr. Crookes’s libel lawsuits. Mr. Newton’s blog contained two hyperlinks to the articles that were defamatory of Mr. Crookes. Mr. Crookes wrote to Mr. Newton and requested that he remove the hyperlinks from his blog, but Mr. Newton refused to do so. Mr. Crookes then sued Mr. Newton for defamation in a British Columbia Court, but was unsuccessful at trial and on appeal. Mr. Crookes appealed and the case made its way to the Supreme Court of Canada.

Mr. Crookes’s appeal to the Supreme Court of Canada was argued on December 7, 2010. In his appeal, Mr. Crookes took the position that, by creating the hyperlinks, or by refusing to remove the hyperlinks when advised of their defamatory character, Mr. Newton became a publisher of the defamatory articles found at the hyperlinked websites.

The main issue before the Supreme Court of Canada was: does the act of creating a hyperlink to another webpage, in and of itself, constitute “publication” (as that term is defined in defamation law), or are there particular circumstances that need to exist before one can conclude that the hyperlink constituted “publication”? In other words, when you hyperlink from your blog to another webpage, how can you know whether or not a person reading your blog will click on that hyperlink and actually read it? This issue is important because, in defamation law, when you “publish” something defamatory (even if you did not author it), you may be held liable for defamation.

To some, this may seem like nitpicking. But there are far greater implications to this decision: We all hyperlink—in our blogs, online articles, websites, tweets and facebook pages (in this short blog, I have already hyperlinked to three other webpages). Can we be held liable for defamation if one of the websites we hyperlink to contains defamatory content?

The answer to that question is in the hands of our Supreme Court Justices. We will have to wait and see what they say.

Happy Holidays and Merry Blogging to all!

Maanit Zemel, Associate
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. Read more.
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