Wednesday, 19 October 2011

SCC: Linking to Defamatory Material is NOT Publication

The SCC today released a long awaited (at least by some) decision on defamation by way of hyperlinking to defamatory material, scoring another point for common sense.  Mr. Crookes alleged that Mr. Newton had defamed him by including in an article he published on his own website several links to websites that contained defamatory materials.  Mr. Crookes lost at trial and on appeal, as courts found that Mr. Newton did not in fact "publish" this defamatory information by merely linking to it.  A few years ago I wrote about this subject here.

The SCC dismissed the appeal, with Justice Abella writing majority reasons and holding that linking to defamatory materials will not constitute publication, unless the manner of linking is defamatory in itself. 
Justices McLachlin and Fish concurred in the result, but held that endorsement of a hyperlink may constitute adoption of the linked content and thus defamation.  Justice Deschamps also concurred in the result, but disagreed with a blanket immunity for hyperlinks, preferring instead a fully contextual approach of whether each particular hyperlink meets the test of publication.

More below.

Justice Abella held as follows:
  • "the question on this appeal is whether a simple reference — like a hyperlink — to defamatory information is the type of act that can constitute publication";
  •  "reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment", quoting from an American case;
  • "Communicating something is very different from merely communicating that something exists or where it exists";
  • " ...  inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked."; 
  • "The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content."
  • "This interpretation of the publication rule better accords with our Court's recent jurisprudence on defamation law. This Court has recognized that what is at stake in an action for defamation is not only an individual's interest in protecting his or her reputation, but also the public's interest in protecting freedom of expression...";
  • "The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential "chill" in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.";
  • "If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content." 
  • However:  "Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff's ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamator";
McLachlin and Fish JJ. agreed with the result, but held that "a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to."  This would have expanded on Justice Abella's suggestion that the manner of linking to defamatory material may attract liability.

Deschamps J. disagreed with what she saw as the blanket exclusion of liability for hyperlinks. She advocated for a more nuanced approach, summarized in the official headnotes as follows:
In order to satisfy the requirements of the first component of publication, the plaintiff must establish, on a balance or probabilities, that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form.  An act is deliberate if the defendant played more than a passive instrumental role in making the information available.  In determining whether hyperlinked information is readily available, a court should consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is a shallow or a deep link, and whether the linked information is available to the general public (as opposed to being restricted).  Any matter that has a bearing on the ease with which the referenced information could be accessed will be relevant to the inquiry.