Can a person who posts hyperlinks to defamatory material be found liable for publishing defamatory material? The Supreme Court of Canada has ruled no in the case Crookes v. Newton.  The decision was eagerly awaited, as critics feared that the Court ruling the other way would have a chilling effect on Internet use. 
The court case involved Mr. Crookes suing Mr. Newton for posting hyperlinks to defamatory content on his website. Mr. Crookes argued that Mr. Newton should be found liable for the offence of publishing defamatory material. The Supreme Court disagreed. Justice Abella, writing for the majority, explained that hyperlinks should be understood as “content-neutral” in that they refer to material but do not by themselves transmit the defamatory content. Merely posting a hyperlink, therefore, does not constitute publication. However, the majority opinion did indicate that should the hyperlinker repeat the content of the link on their own site then this could attract liability.
While the Court was unanimous in its decision that the hyperlinks in question did not constitute defamatory publication, there were three separate opinions written. The range of reasons used to explain the same outcome demonstrates the complexity of this question and the challenge of adapting traditional laws of defamation to online context. Agreeing with the majority on the result but giving their own reasons, Chief Justice McLachlin and Justice Fish specified that while merely posting a hyperlink will not be defamatory, “[p]ublication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text." Justice Deschamps also wrote a concurring opinion, disagreeing with the majority’s position of categorically ruling that hyperlinks will not be considered as publishing defamatory material. Justice Deschamps reminded the Court that publication exists if the plaintiff can prove both that the defendant made defamatory material available to a third party and that a third party received this material in such a way that it is understood.  To evaluate a hyperlink, then, we must look at how available the content was to those accessing the website and whether there is proof that third parties did indeed access and receive the content. Justice Deschamps finds that in this case the hyperlinks did not meet this standard and so should not be considered defamatory.
In coming to this decision, the Supreme Court recognized that actions in defamation should weigh an individual’s right to protect their information with the public interest in protecting freedom of expression. The question thus becomes whether the Court struck the right balance on this occasion. One can imagine that this decision will make it more difficult for individuals to protect themselves from online harassment and defamation. While it is clear that the original publisher of the material should be the one held ultimately responsible, reposting the content through hyperlinks undoubtedly increases the reach of and can increase the damage caused by the defamatory statements. On the other hand, it is likely that the number of lawsuits for defamation would skyrocket if everyone who had ever linked to a website were to be held liable for its content. Moreover, what happens when the contents of a website changes from innocent to defamatory after an individual has posted the hyperlink? It seems, therefore, that while some may criticize the Court for not standing up for the rights of victims of defamation, the decision can be justified by the goals of protecting freedom of expression as well as more practical considerations of limiting litigation.
Posted on November 3, 2011 by Anna Piekarzewski
 2011 SCC 47, available at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7963/index.do.
 Meagan Fitzpatrick, “Internet links not libel, top court rules” CBC News, October 19, 2011. Available at https://www.cbc.ca/news/politics/internet-links-not-libel-top-court-rules-1.1064340, accessed October 25, 2011.
 Supra note 1 at para 48.
 Ibid at para 55.
 Ibid at para 31.