C OMMERCIAL L ITIGATION
G ROUP B ULLETIN
S EPT EMB ER 20 09
WEBSITE OWNERS MAY FACE
LIABILITY FOR HYPERLINKS TO
DEFAMATORY MATERIAL
By David Crerar and Michael Skene
Borden Ladner Gervais LLP, Vancouver
The British Columbia Court of Appeal has just issued an important judgment on
the increasingly important issue of Internet defamation: Crookes v. Newton 2009 BCCA
392. The decision is vital to every person and business that publishes material on the
Internet or that operates a website.
The judgment provides more good news than bad to persons participating on the
internet, confirming that hyperlinks will not in themselves implicate a website
owner in publishing defamatory material found on the hyperlinked website. But,
if a Court finds that the hyperlinking website endorses or adopts the defamatory
content, or explicitly encourages the reader to link to the offending material, then
the hyperlinking website owner may be deemed to have participated in a republication
of the offending material, and face liability and damages.
The Crookes facts
The plaintiff in Crookes is a Vancouver-based businessman and sometime member
of the Green Party of Canada. His Green Party ties were the subject of various articles
he claimed to be defamatory. In an earlier lawsuit, he sued the supposed author of
those articles. This case arises from a second lawsuit commenced by Mr. Crookes.
In the facts leading to the present decision, the defendant Jon Newton runs a website,
www.p2p.net. On his website Mr. Newton published an article entitled, “Free Speech
in Canada”. The Newton article referred to the earlier Green Party article, and
provided a hyperlink to that article. Newton did not quote the earlier article, or
comment on its content.
Publication
It is not widely known, but almost everyone who plays a role in the writing, publication,
or distribution of a defamatory article can be sued and can be found liable in defamation.
It is not generally a defence that one is only repeating what another person originally said.
BORDEN LADNER GERVAIS LLP
WEBSITE OWNERS MAY FACE LIABILITY FOR
HYPERLINKS TO DEFAMATORY MATERIAL
A plaintiff in a defamation lawsuit must prove, among other matters, that the defendant published the
defamatory words. The primary question is whether that person played a role in writing, publishing, or
distributing those words. The issue of publication looks to both the giver and receiver of the offending
material. On one hand, did the defendant participate in disseminating the offending material? On the
other, did anyone actually receive and read the offending material? Crookes considers both sides of the
question of publication.
Publication via hyperlink
In order to be liable for defamation, it must be proved that the defendant published the offending words.
When the offending words appear in a newspaper or magazine, or are directly placed or quoted on a
website, publication seems obvious. But what if the website does not directly publish the offending words
on its own website, but instead provides for its readers a hyperlink to another website where the offending
words are found?
The British Columbia Court of Appeal concluded that providing a hyperlink, in itself, does not establish
that publication has occurred. If the website simply provides a hyperlink, or describes the hyperlinked
contents in a neutral manner, then the hyperlink is serving as no more than a footnote or a card in a
library catalogue. The website is not adopting the offending words as its own, and is not indirectly
publishing them.
If, however, the linking website endorses the content of the hyperlinked material or encourages the
reader to click to the hyperlinked material, the website defendant may be seen to be participating in
the dissemination of the offending material, and publication may be found.
To provide hypothetical examples, the first may well lead to a finding of publication, while the second
would probably be safe:
•
“Click here to learn the truth about Mr. Smith’s history of fraud and corruption.”
•
“As shown here, Mr. Smith’s business practices have been the subject of some (unproven)
criticism and litigation.”
The Court also confirmed that providing a website address (as opposed to providing a clickable
hyperlink), without more, does not constitute publication.
BORDEN LADNER GERVAIS LLP
WEBSITE OWNERS MAY FACE LIABILITY FOR
HYPERLINKS TO DEFAMATORY MATERIAL
Presumption that the material was read within the jurisdiction
The plaintiff must also prove the other aspect of publication: that the offending material was received
and read by someone. This proof is fundamental to a claim in defamation.
It is also fundamental to the issue of whether it is appropriate to sue in a given jurisdiction. A plaintiff
suing in British Columbia must prove that at least one person in British Columbia read the offending
material.
In Crookes, the Newton article providing the hyperlinks had been accessed a total of 1,788 times. It was not
clear whether anyone accessing the Newton article had actually clicked on the hyperlinks to the offending
material. Nor was it clear what number of these hits came from independent or repeat visits. Nor was it
clear how many hits came from humans or from information-gathering Internet “robot” software.
Nor was it clear whether any of the readers were located in British Columbia.
In the circumstances, the Court found that the bald fact that there was a certain number of hits on the
website article could not prove that anyone had clicked the hyperlink to read the Green Party article via
the Newton article.
Accordingly, the plaintiff had also failed to prove that anyone in British Columbia had read the article,
and thus could not show that British Columbia courts had jurisdiction to hear the matter.
In contrast, the one dissenting justice on the Court of Appeal would have found that 1,788 hits on
an article on the topic of free speech provided ample evidence from which a court could infer that at
least one person had read the article, and clicked on the hyperlink to the offending article, which then
establishes publication.
Liability for refusing to remove defamatory material
Mr. Crookes also argued that publication should be established because Mr. Newton refused to remove the
hyperlinks to the offending material after Mr. Crookes had asked that he do so. Mr. Crookes argued that
this refusal showed that Mr. Newton exercised control over the hyperlinks, and that he had participated in
their dissemination.
The Court declined to address this issue, which had not been argued on a full evidentiary record in the
Court below. As the lower Court had found that it could not be inferred that anyone had clicked on the
hyperlinks, it was unnecessary to address this issue.
This issue remains unsettled, but cases both in British Columbia and England suggest that a defendant
website host that fails to remove defamatory postings after having received notice of their potentially
defamatory content may be liable for republication of those materials: Godfrey v. Demon Internet Ltd.
[2001] Q.B. 201 and Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398.
BORDEN LADNER GERVAIS LLP
WEBSITE OWNERS MAY FACE LIABILITY
FOR HYPERLINKS TO DEFAMATORY MATERIAL
Recommendations
The Court of Appeal decision provides useful guidance for internet participants, and
rules out the possibility that publication flows from the simple act of hyperlinking.
But Crookes confirms that each case will turn on its own specific facts, including the
wording, tone, and placement of the introduction to the hyperlink. A website owner
or manager would be wise to seek legal advice before hyperlinking to a potentially
defamatory website, or else risk a finding of publication and liability just as if it were
the author of the offending material.
For further information on these or other trade-mark matters please feel free to contact:
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