The emergence of the Internet has raised new questions around the law of defamation – most recently, whether hyperlinking comes within the scope of the publication rule.
The Canadian Supreme Court, in a decision released this month, has given freedom of the Internet a boost by concluding that to hyperlink is not to publish and therefore that simply to hyperlink to a defamation is not to defame.
This Brief Counsel looks at the judgment and its implications.
The legal test for defamation
A defamation claim involves legal action to protect a person’s reputation from unwarranted injury by the words of another. Defamation law 101 requires the aggrieved party to show:
- publication of words
- that identify the aggrieved party
- and which lower the aggrieved party’s reputation in the estimation of right-thinking members of society.
The publication element is usually the easiest to prove – the newspaper was published, the news broadcast went to air, the blog comment was posted. The publication is self-evident.
However, hyperlinking has always been a more difficult issue. Hyperlinking, at its simplest, is when one web page contains a reference which can be clicked to direct a user to another web page.
So what happens when web page A, completely inoffensive in all respects, contains a hyperlink to web page B, an unrelated site, which contains the most dastardly defamatory comments about an individual? Has A published the comments by B?
Setting a courageously clear precedent, the Supreme Court of Canada in Crookes v Newton (2011 SCC 47, 19 October 2011) said by majority an emphatic “no”.
The Court was persuaded that hyperlinks are references that do not communicate the content to which they refer. Accessing the content requires an act by a third party. Equally, using a hyperlink gives the author no control over the content which is linked.
There is also freedom of expression to consider - in particular the potential “chill” in how the Internet functions if the role of hyperlinking in the flow of information were impaired. The majority view was encapsulated by Abella J:
Hyperlinks … share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content.
The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral – it expresses no opinion, nor does it have any control over, the content to which it refers. 
The Court thought that in some circumstances, where the hyperlinking suggested adoption or endorsement of the content being linked to, there would be publication, but in general a mere reference to a website would not be enough.
Part of the problem for Mr Crookes was that he could not prove that anyone had actually used the hyperlinks to access the article he was upset about. The Court was not prepared to assume, from the number of hits on the offending website, that the hyperlinks had been used.
Chapman Tripp comments
A lesson from the judgment is that anyone bringing a hyperlinking case needs to get evidence that someone actually clicked on the link. But we think the Supreme Court of Canada’s blanket rule might go a little too far. There may occasionally be a need to cross the Court’s bright line.
Here’s why: the case involved both “shallow” and “deep” hyperlinking. “Shallow” hyperlinking is where the hyperlink directs the user to a website generally – say, to its home page. “Deep” hyperlinking directs the user to a particular page within the site.
In Crookes, one of the hyperlinks involved clicking on Mr Crookes’ name to be directed to a derogatory article about him. A deep hyperlink from a person’s name to a derogatory article suggests to us a degree of adoption or endorsement of the linked article. That was also the minority view in the Supreme Court of Canada:
In sum, an approach that focuses on how a hyperlink makes defamatory information available offers a more contextual and more nuanced response to developments in communications media than merely excluding all hyperlinks from the scope of the publication rule. 
In short, the case is good news for regular users of hyperlinks, but we suspect there is enough in the minority Canadian judgment of Deschamps J that the issue might still be up for debate if it were to reach the Courts on these shores.