"Crookes v. Newton: Hyperlinking, Defamation Law, and Freedom of Expression on the Internet"

"Last week, the Supreme Court of Canada released its landmark decision in Crookes v. Newton, 2011 SCC 47, affirming 2009 BCCA 392 and 2008 BCSC 1424. At issue was whether creating an internet hyperlink to defamatory material constitutes “publication” of the material for the purposes of defamation law. The case challenged the Court to strike an appropriate balance between the competing interests of freedom of expression and the protection of reputation in the new context of internet communications.

To succeed in a defamation action, a plaintiff must first prove that defamatory words were published. The decision in Crookes stands for the proposition that a hyperlink, by itself, is not publication of the content to which it refers. Publication will only occur if the hyperlink is presented in a way that repeats the defamatory content. This article discusses the decision’s background, reasoning, and implications.

Background

The appellant brought numerous defamation actions against various individuals and organizations alleging that he had been defamed in several articles on the internet. After those actions were commenced, the respondent posted an article on his website which commented on the implications of the plaintiff’s defamation suits for operators of internet forums. The respondent’s article included hyperlinks to websites containing some of the allegedly defamatory articles that were the subject of the plaintiff’s actions. However, the respondent’s article did not reproduce or comment on the content in those articles.

The appellant discovered the respondent’s article and advised him to remove the hyperlinks. When the respondent refused, the appellant brought an action seeking damages for defamation on the basis that the hyperlinks constituted publication of the allegedly defamatory articles. There was evidence that the respondent’s article had been viewed 1,788 times, but no evidence as to how many times, if any, the hyperlinks in the article had been followed."

Source of Post
http://matthewnied.com/2011/10/24/crookes-v-newton-hyperlinking-defamation-law-and-freedom-of-expression-on-the-internet/