“This is a re-posting of a comment first published on the blog IP Osgoode at the url http://www.iposgoode.ca/2011/10/crookes-v-newton-scc-holds-that-hyperlinking-was-not-defamatory”
Today, the Supreme Court of Canada released its decision in Crookes v Newton, which considers whether the author of a website article can be liable for defamation by hyperlinking to defamatory material on the Internet.
The Court dismissed the appeal and found Newton not liable for defamation. Justice Abella, writing for a majority of six, held that hyperlinks are content neutral references and do not constitute a publication. Chief Justice McLachlin and Justice Fish co-authored reasons agreeing substantially with the majority, but found 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. Justice Deschamps agreed in the result, but gave significantly different reasons. Deschamps outlined a comprehensive test for defamation by hyperlinking, found that at least one of the impugned hyperlinks was a deliberate act constituting a publication of defamatory content, but found insufficient evidence that the defamatory content was received by a third person.
This decision could have implications for copyright law and whether hyperlinking could be considered a publication or reproduction.