B.C. Supreme Court

Are You Liable If You Link To Libel?

By Julia Dmytryshyn

Wayne Crookes

A defamation decision from the B.C. Supreme Court has concluded that an Internet website that simply posts hyperlinks, without comment, to another website's purportedly defamatory stories does not amount to publication. In its Oct. 27 judgment (Crookes v. Wikimedia Foundation Inc., 2008 B.C.S.C. 1424), the Court also held that the mere existence of a hyperlink does not lead to a presumption that anyone actually used it.

Hyperlinking occurs when a website makes reference to a page on another website. When the reference is clicked on the original page, the viewer's browser immediately takes the user to the original story on the original website.

The plaintiff in this case, Wayne Crookes, whom many may remember as the Green Party's former campaign manager, alleged he was defamed in four articles that were originally published on two political websites. The articles were subsequently hyperlinked from various other sites and forums on the Internet.

Five lawsuits filed in defamation action

Crookes cast a wide net, filing five separate lawsuits for defamation in the BC Supreme Court against individuals and corporate entities such as Yahoo!, MySpace, and Wikimedia.

This action was commenced against Wikimedia Foundation Inc. and Jon Newton. Newton runs a website called p2pnet.net, a Canadian website whose mission is "to carry daily, frequently updated news, stories, features and commentaries on digital media, distributed computing and associated technologies and events which haven't been spun, filtered and pre-digested by vested corporate interests". Newton's website published links to the stories about Crookes in the context of a story about the consequences of defamation actions against Internet forums. The story did not comment on the veracity of the articles about Crookes.

Newton brought a Rule 18A application before the Court, asking it to dismiss the case against him for two reasons. First, there was no evidence any person actually clicked on the hyperlinks and read the articles, meaning there was no proof of publication.

Secondly, he argued that simply creating such a hyperlink did not constitute publication of defamatory words, publication being an essential element of defamation. Without it, Newton said, there could be no defamation.

The Court agreed.

Court: Hyperlink does not constitute publication of libel

As to the first issue, Crookes asked the Court to make an assumption that the mere existence of the hyperlink meant that users used it, but provided no evidence that anyone had done so. Without proof, it was far too great a leap to conclude that the simple creation of the link could lead to such a presumption.

In fact, the failure to provide evidence was one of the reasons another of Crookes' actions was dismissed in 2007. The Court refused to side with Crookes without proof that people had actually used the hyperlink.

Then, moving on to the second issue, the Honourable Justice Kelleher asked "whether publication of an Internet location by a hyperlink amounts to publication of the contents of the linked website". The simple answer is no.

Comparing a hyperlink to a footnote in a newsletter or reference article, the Court said that simply because a reader might look to the source material noted in an article, what "readers find when they get there" couldn't be attributed to Newton.

This decision could have interesting repercussions for websites, particularly as the popularity of weblogs and other peer-to-peer sites grows and hyperlinking becomes increasingly commonplace.

Decison avoids "chilling effect" on free speech

In particular, Justice Kelleher distinguished his holding on the basis that Newton's website had merely published a hyperlink without comment or reproduction. This may open the door for even narrower issues to be brought before the courts in the event that a secondary, linking website comments on potentially defamatory material, creating some kind of defamatory chain reaction.

Had the decision come down on the side of the plaintiff, it certainly would have resulted in a "chilling effect" for free speech that is so often a larger concern in defamation actions. Websites would have to be ever vigilant of publishing anything that may raise issues of liability, which would place an undue burden on them. Luckily, the freedom to hyperlink remains alive and healthy in Canada … for now.