Web-Based Defamation in the 21st Century: Crookes v. Newton and Future Implications

As the Internet continues to rapidly expand at the speed of “life” in the twenty first century, so too must our centuries old laws in order to keep pace with the new realities. One recent example of this legal shift towards modernism can be demonstrated in Canada’s first appeal involving the issue of whether posting hyperlinks onto one’s own website, which link to other defamatory sources can trigger liability for defamation.

This was precisely the situation in Crookes v. Newton, a British Columbia Court of Appeal decision released on September 15, 2009. In this case, the plaintiff, a Vancouver businessman, sued the defendant, the operator of a free speech website. The website, www.p2pnet.com published an article about the plaintiff who at the time was suing some other websites for defamatory content written about him.

In the article, two hyperlinks were posted, which linked to the defamatory content. These hyperlinks directed readers to external websites containing defamatory content about the plaintiff, but the content itself was not contained in the defendant’s article. Upon learning about this, the plaintiff requested that the defendant remove the hyperlinks. The defendant refused on the basis that such hyperlinks were merely hyperlinks to outside sources with the contents not being publications of the website itself. The plaintiff sued and lost at trial. He then appealed to the British Columbia Court of Appeal claiming that the hyperlinks should be considered a publication of the defendant.

The Court of Appeal was divided on the issue of whether the facts surrounding the creation of a hyperlink in this case could create the inference of a publication. In the end, the Court held that the hyperlink postings were not considered a publication of the website operator and therefore no liability was found.

One of the arguments put forth by the plaintiff that the Court found persuasive was the fact that hyperlinks could be analogized to footnotes in that posting a hyperlink is no different than an author providing a footnote reference to another source. As such, since the author of a work would not be found liable for defamatory statements found within any referenced footnotes, neither should a website operator who creates hyperlinks to external references containing defamatory material. However, the Court did emphasize that the footnote analogy is not a guarantee to avoiding liability for publication of a hyperlink, as many authors tend to use footnotes and citations in a very “expansive” manner.

Several non-exhaustive factors which the Court set out in assessing whether liability may apply in these situations include factors such as: (a) how prominently the hyperlink is displayed, (b) the presence of any “words of invitation” or recommendation to the readers encouraging them to click on the hyperlink, (c) the nature of materials which it is suggested may be found at the hyperlink such as whether the material is “obscene” or “scandalous”, and (d) “a host of other factors”. This then leaves the door open to other possible considerations in the future.

It is likely that this issue will become more prevalent as the Internet continues to evolve. This is because the Internet provides an important public platform for individuals all over the world to communicate and freely express their views and opinions through countless forums that are heard, viewed and seen by millions, which would not otherwise be economically possible. On the other hand, the very threat of certain communications on the Internet to tarnish one’s reputation can have a significant detrimental impact on victims of such misinformation. Therefore, the courts need to set a balance. This decision seems to set the groundwork for future challenges. It will be interesting to see how these principles will be applied and developed by courts in the future.

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