Hyperlink
Continued From Page 1
jecting 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 devas-
tating, since primary article auth-
ors would unlikely want to risk
liability for linking to another
article over whose changeable
content they have no control …
Strict application of the publica-
tion rule in these circumstances
would be like trying to fit a square
archaic peg into the hexagonal
hole of modernity.”
The lawyer for blogger and free-
speech advocate Jon Newton, who
refused to remove a link to material
Wayne Crookes considered part of
a “smear campaign” against him,
says the court imposed a “bright-
line test” that ensures Internet
users “are not forever wondering if
they’re going to be sued for their
hyperlinks.” Links are “the heart of
the Internet” and “a way of very
quickly referencing and taking
somebody to something,” Daniel
Burnett of Vancouver’s Owen Bird
Law Corp. said. “They’re like a
launching pad … readers expect to
be able to take something they’re
interested in and keep drilling, and
that means links.”
Had the court imposed liability
on link creators, he added, “the
implications would have been
staggering” for the free flow of
information on “the most import-
ant communications medium
that’s come along in a long time.”
Vancouver lawyer Robert
Anderson, who represented a
group of media interveners, says
equating linking to re-publication
would have been “catastrophic” for
news organizations that rely on
Quicklaw®
Research Solutions
To know is essential.
To Know More is powerful.
LexisNexis® Quicklaw®
Employment Essentials
Get Halsbury’s ® Laws of Canada, Butterworths® Texts
and Treatises, Forms & Precedents, The Canada Digest
and other exclusive online content.
FOR A FREE TRIAL call 1-800-255-5174 or visit www.lexisnexis.ca/freetrial
links to add depth to news stories,
and to attract advertising revenue
to their websites.
“If we can’t hyperlink, we can’t
compete,” noted Anderson, and
online journalists don’t have the
time or resources to check whether
linked material could be defamatory. Anderson practises with Far-ris, Vaughan, Wills & Murphy.
While Crookes’ lawyer acknow-
ledges the potential impact of a
stricter test, Robert Kasting of the
Vancouver firm Stewart, Aulinger
& Co. says he argued “there should
be a certain level of responsibility
that people take when they volun-
tarily hyperlink to something.”
He likens hyperlinking to tak-
ing an item containing defamatory
material and “stapling it to the
back” of the webpage containing
the link, making the libel instantly
accessible in a way no footnote in
the print world can match.
In concurring reasons, Chief
Justice Beverley McLachlin and
Justice Morris Fish endorsed a
stricter test formulated in the B.C.
courts. A hyperlink can be defamatory, they held, if its wording or the
surrounding text amounts to the
“adoption or endorsement” of the
defamatory material accessible
through the link.
Justice Marie Deschamps filed
a lengthy judgment that dismissed
Crookes’ appeal, but she argued
that hyperlinks can be considered
a form of publication. Protecting
reputations online requires a
more nuanced approach than
what she termed the majority’s
“inadequate solution.”
She proposed a test that would
assess whether the linker made
deliberate efforts to bring libel-
lous material to the attention of
others, whether the links were
“deep”—to specific pages or pas-
sages — rather than “shallow — to
a general website—and whether
there was evidence third parties
received and understood the
defamatory material.
Kasting says the court’s lack of
unity, coupled with the fact two of
the six judges who produced the
majority judgment have recently
retired, could mean this won’t be
the last word on the issue.
Justice Abella left open the
possibility of further refinement
of the re-publication rule as new
forms of online linking are
devised. “The reality of the Internet means that we are dealing
with the inherent and inexorable
fluidity of evolving technologies,”
she noted, and it would be “unwise
in these reasons to attempt to
anticipate, let alone comprehensively address, the legal implications of the varieties of links that
are or may become available.” n
LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Butterworths
and Halsbury’s are registered trademarks of Reed Elsevier (U.K.) Limited and its affiliated companies. Quicklaw is a registered
Reasons: Crookes v. Newton, 2011 SCC 47]
We want to hear from you!
