Based on the current state of the law in Canada, it is possible that posting hyperlinks on your website could potentially render you liable for republication of defamatory content or sources residing on the website  you link to.  There is  extensive case law, not limited to defamation, as to the legality of practices such as   hyperlinking and framing on the internet.

The case of Crookes v Newton, discussed below, is  awaiting an appeal before the Supreme Court of Canada after the  Plaintiff Crookes was granted leave to appeal on 1 April 2010.

Hopefully the case will likely to clarify  the unsettled state of the law with respect to the liability of bloggers, publishers and website operators for republication of defamatory material.

One thing emerged from the  British Columbia Court of Appeal’s decision in Crookes v Newton, namely that merely posting hyperlinks on your website won’t, in and of itself, render you liable as a website owner for re-publishing defamatory material residing on a hyperlinked website.

The   Court of Appeal of British Columbia in Crookes v Newton was the first appellate court in Canada to consider the issue of liability for hyperlinks to defamatory content.  Although the Court found the defendant in this case  not liable for republication of defamatory content, the Court stated that where a website owner is perceived to be endorsing, adopting the defamatory content or encouraging the reader to link to the material, they could be potentially liable for republication.

The question before the Court was whether a person publishing content on one website can ever be held liable for defamation by placing a hyperlink to defamatory content hosted on another web site. This is the first case in Canada at the appellate level which has addressed this issue.

Crookes took legal action against several parties, alleging  he had been defamed in a
number of articles. The articles in question were displayed on two different websites.
Amongst the defendants Crookes sued was the owner of a third web site, www.p2pnet.net, run by Mr Jon Newton, a free speech advocate.

The basis for Crookes’ complaint against Newton was that he was the author of an article he had published on his website www.p2pnet.net providing general commentary on Canadian defamation law in which he referred to Crookes’ defamation actions.

Newton had provided links to the websites upon which the allegedly offending material resided which formed the subject of Crookes’ defamation claims.  Crookes’ complaint was based on the premise that Newton was indirectly publishing the defamatory content, and thus actively participating  in the dissemination of the offending articles.

To succeed in a defamation action  a plaintiff is required to establish the alleged
defamatory statements are defamatory in that they have a tendency to lower the reputation of the plaintiff in the estimation of a right thinking members of the community, that they refer to the plaintiff and have been published to a third party.

The Court focused their attention on the latter element, namely the issue of ‘publication‘,
specifically whether the placing of a hyperlink on a website by it’s owner can lead to a
presumption of publication of the content which resides at the hyperlinked website.

Secondly the court considered whether, based on all of the facts and circumstances, the defendant’s act in creating the  hyperlink could be said to constitute publication by him of the articles appearing on the hyperlinked websites.

All Judges agreed that there was no foundation for a general presumption of publication in
the case of hyperlinked articles, emphasising that if the Court found such a presumption
this would mean that liability for publication would arise on each occasion a user visited a
website.

The presumption of publication in the case of articles hyperlinked to a website is “one
step” removed from primary publication.  The Court remarked that if such a presumption did arise the onus would rest with a defendant to prove that a hyperlink did not in fact
constitute publication.

After considering the question in the abstract, the court went on to consider whether, based on all of the evidence presented, the defendant Newton’s hyperlinking in fact amounted to publication of the allegedly defamatory material. The majority of the Court who held that the hyperlinking didn’t amount to publication, alluded to the two features of the publication component in defamation law 1) the act of dissemination of offending material and 2) the receipt of that material by a third party.

In analysing the first feature of publication, the majority  drew upon previous case law to
arrive at the conclusion that merely furnishing a hyperlink as a reference to a reader
doesn’t constitute republication. The majority noted that there was still a barrier between
the article readers accessed on the hyperlinked website and the article accessed on the
owner’s website, a bridge that only the reader, not the publisher could fill.

However within the judgement,  there was an acknowledgement by the majority that the
individual circumstances of a case might demonstrate that a hyperlink constituted a form of  invitation or incited a reader to view a website containing defamatory material.

In doing so, the majority were prepared to envisage a situation where, based on all of the facts and circumstances, a Court might be prepared to find that a hyperlink constituted publication of  defamatory content linked to.    Based on the facts of the case, the majority did not find that Newton had offered the requisite element of encouragement, inducement or invitation to lead to such a finding of liability.

This begs the question of whether  merely quoting the article or commenting on it’s content have been enough to find that element of encouragement?

On the other hand, the dissenting judge  perceived the articles as offering  such
encouragement, with the relevant hyperlinks being viewed by them as much more than  “mere bibliographical” footnotes.

The Judges also divided in their opinion as to whether it is open to presume that any user
who just follows the hyperlinks on Newton’s website did so merely by virtue of the fact that
his article had received a large number of hits (1788 hits).

The majority held that alarge  number of ‘hits’ received by a website containing hyperlinks will not, in and of itself, lead to an inference that readers clicked the hyperlink just to read the offending material. The majority approach seems like a sensible one, particularly given the fact that it wasn’t even known whether anyone who had accessed the article written by Newton had actually clicked on the hyperlinks which transported them to the offending material. Neither was there evidence to establish what number of hits emanated from human beings or bot software.  Nor was it even apparent whether the readers actually resided in British Columbia.

The decision in the Crookes case does offer valuable commentary on this area of law, but
doesn’t give a clear answer regarding liability for hyperlinking to websites containing defamatory material.  The decision indicates that hyperlinking may be considered
publication where there has been an “encouragement or invitation” to view the hyperlinked content.

There is a conspicuous lack of firm guidelines as to what other elements must be present in order for a court to find a website owner liable for hyperlinking to defamatory material. Given the fact that hyperlinking is an essential part of the functionality of the internet, analogous to a card index in a library, the potential liability of website owners and publishers could be extremely broad given the ubiquity of links on the internet.

It is difficult to conceive of  a situation where a link isn’t provided to a reader without some implied form of invitation or inducement to encourage them to visit the linked to website.

Liability founded on hyperlinking can arise with respect to defamatory material and arguably to any form of material which is deemed to be illegal. This has profound implications for freedom of speech in the sense that it could stifle people wanting to link to all kinds of  information.  Perhaps the legislature should introduce some certainty so that the rules are clearer in relation to whether liability should be confined to the person who publishes the original defamatory content, or can be imposed on anyone who decides to link to it.

Hopefully the Supreme Court will render a decision which strikes a balance between free speech and the protection of reputation which won’t discourage users to refrain from posting hyperlinks for fear of being hauled into Court.

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