Supreme Court’s hyperlinking decision a victory for freedom of expression on the Internet

Wednesday, October 19, 2011

TORONTO, Oct. 19, 2011/ The Supreme Court of Canada released the long anticipated decision on Crookes v. Newton today. Its ruling reiterates the Court’s commitment to adapting the laws of defamation to the Internet age. Specifically, the Court decided that merely providing a hyperlink to a defamatory story does not make the author of the link a publisher of, or liable for, what is contained in the hyperlink. The court observed that communicating something is very different from merely communicating that something exists or where it exists.

The Court recognized that the Internet cannot provide access to information without hyperlinks, and observed that the potential “chill” to the function of the Internet could be devastating if authors or publishers were held responsible for the content on the page the hyperlink leads to, since they would be loath to incur liability for linking to another article.

The majority held that an author citing a hyperlink should only be held liable when he or she presents the hyperlinked material in a way that actually repeats the defamatory content. However, at the same time, the court recognized that context is critical in determining what is defamatory, and that defamatory meaning may be discerned from all the circumstances of the case, including any reasonable implications the words may bear.

The Chief Justice and Fish J. clarified this approach: “A hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific defamatory content it links to. A mere general reference to a website is not enough to find publication.”

Canadian Journalists For Free Expression, one of many interveners in this case, is delighted with the Court’s decision. The Court indicated an explicit desire to recognize and adjust to the challenges of publishing in the Internet age, and recognized the chilling effect an adverse judgment would have had on freedom of expression. CJFE welcomes this incredibly important step in defining and protecting free expression online in Canada.

About CJFE:
Canadian Journalists for Free Expression (CJFE) boldly champions the free expression rights of journalists and media workers around the world. In Canada, we monitor, defend and promote free expression and access to information. We encourage and support individuals and groups to be vigilant in the protection of their own and others' free expression rights. We are active participants and builders of the global free expression community.