ANALYSIS | Supreme Court hyperlink decision a victory for free speech

When you create a hyperlink to a web page that has defamatory content, are you liable for it?

The Supreme Court of Canada has now given us the answer, and like most things in law the answer is both simple and potentially complicated.

According to Justice Rosalie Abella, who wrote for the majority, "a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers."

In other words, creating it on your web page does not, by itself, make you liable for what might be displayed on another website when someone clicks through.

Never is a strong word, rarely used in law. For those who care about free expression on the internet, the ruling is certainly welcome. If you read the whole decision, though, there's more to the story.

First, a little context. It's surprising that this case was pursued to the nation's highest court, because the plaintiff, Wayne Crookes, had sued a number of those involved in publishing the original articles of which he complained. Those cases were either dismissed, or left dormant while this hyperlink case went forward.

Crookes, a Vancouver businessman, was a campaign manager for the Green Party in B.C. during a period of internal turmoil. In 2006, he sought damages against Jon Newton, who ran the website p2pnet.net, for linking to articles on a couple of other websites about Crookes, which he felt were defamatory.

By going after Newton who had simply hyperlinked to other sites, Crookes was effectively trying to get the courts to stop anyone from even learning those articles existed, to render them practically obscure, lost among the millions of web pages written and forgotten every day.

If he'd succeeded, that would have been the effect, and the end of what he alleged was a smear campaign against him.

Fast footnotes

In this case, all agreed that the two paragraphs on Newton's site that referred to Crookes were not defamatory in and of themselves. Ironically, perhaps, the text and its two hyperlinks were on a page entitled "Free Speech in Canada." This is what Newton wrote:

"Under new developments, . . . I've just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.

"We've decided to pool some of our resources to focus more attention on the appalling state of Canada's ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future."

In Tuesday's judgment, the majority held that a plaintiff concerned about mere hyperlinks should sue the publishers of the original articles, who made the material available to the public in the first place.

Hyperlinks are simply references to other content. Think of them as fast footnotes. The reader has to do something to get to the content: by going to the library in an earlier era; or, more easily now, by clicking on a link.

In essence they are content neutral. They don't express opinion, nor control the site to which they refer. In fact, the content can and often does change after the link is created.

Potential chill

In the U.S., s.230 of the Communications Decency Act immunizes secondary publishers, those who simply display the content provided by others.

As well, a judgment there held that it is not a republication of a libel simply to say "for more details about [the plaintiff] see … "

In this case, our Supreme Court built on its earlier recognition in the copyright context of the need to facilitate free expression on the internet, "one of the great innovations of the information age."

The majority didn't want to risk seriously restricting the flow of information and free expression, by discouraging use of hyperlinks for fear of liability. The chill could be "devastating", according to Justice Abella.

Having said that, however, she appeared to qualify her categorical statement that a hyperlink should never be seen as publication.

If the person creating the hyperlink uses it in a manner that in itself conveys defamatory meaning, because, in context, they have actually expressed something defamatory, for example repeating the defamatory content from the site linked to, there could be liability.

As well, she noted, while this decision blesses hyperlinks that are both shallow (to the website as a whole) and deep (directly to the article in question), it doesn't address other types of hyperlinks, such as embedded or automatic links, or future hyperlink technologies.

Qualifiers

All of the Supreme Court judges dismissed Crookes' appeal, but three offered different reasons. Chief Justice Beverley McLachlin and Justice Morris Fish felt that using a hyperlink could amount to publication of the content of the article referred to if the text surrounding the link indicates adoption or endorsement of the content of the hyperlinked text.

They worried as well about future hyperlinks that might project content automatically on a page, or in a separate frame, with little or no prompting from the reader. But those were not addressed in this case.

When you hyperlink, should you put in a disclaimer that you take no responsibility for what may appear on a third-party site?

Given the majority decision, that doesn't appear necessary, but if you want to cover your bases, it might answer the concerns expressed by the chief justice.

Justice Marie Deschamps, for her part, felt that this case turned on whether anyone actually followed the hyperlinks and read and understood the defamatory content. 

In this case, she felt, the fact that there were 1,788 hits to Newton's site did not amount to proof that any of those hits resulted in click-throughs on the hyperlinks, let alone proof that anyone read the defamatory content on the pages he was linking to.

So, can we breathe more easily when we create those links?

Yes, but be aware that republishing or reworking the defamatory content you're linking to on your own site — or, according to two of the judges, even agreeing with it on your site — could require you to have another defence available.

Happily, in earlier rulings, notably WIC and Grant, the Supreme Court has given us strong defences such as "fair comment" and "responsible communication," permitting publication of strong language on matters of public interest.

Truth is another defence that might help.

It never hurts to know your rights.