Article originally published in McCarthy Tétrault Co-Counsel: Technology Law Quarterly on February 12, 2009
The B.C. Supreme Court recently ruled that merely hyperlinking to defamatory material, without repeating the comments itself, does not amount to publication. In Crookes v. Wikimedia Foundation Inc., the court dismissed a defamation action against an individual who had hyperlinked an article on his website to alleged defamatory articles on other websites. The defendant himself did not write or post any defamatory words on his website, nor did he quote from the contentious articles.
To succeed in an action for defamation, plaintiffs must prove publication. Under B.C. legislation, publication is presumed for statements made in books or newspapers or broadcast to the public. In this case, the plaintiffs argued that posting a hyperlink to a website containing defamatory words constitutes publication of the defamation.
The judge found that there could not be a finding of publication without proof that visitors to the defendant's website actually followed the hyperlinks and read the defamatory statements on the other sites.
In deciding whether hyperlinking to defamatory material constitutes publishing the defamation, the judge analogized between hyperlinks and footnotes. Both direct the reader to further material from other sources. Just as the inclusion of a footnote to defamatory material does not constitute publication of the defamatory material, the creation of a hyperlink does not constitute re-publication of the content of the original site. The mere fact that hyperlinks give immediate access to the other material does not change the equation.
McCarthy Tétrault Notes:
The court's finding that the mere creation of a hyperlink in a website does not lead to a presumption that persons read the contents of the website and used the hyperlink to access the defamatory words is an important one in the context of Internet publication. Because the content of a site linked to your site by a hyperlink can change, it is not practical to engage in constant monitoring. Nevertheless, it continues to be good practice to include a disclaimer when a website contains hyperlinks to other sites.
The analogy to footnotes is also apt and demonstrates that the courts do not have to invent an entirely new legal construct to deal with issues on the Internet and that frequently existing legal analysis will suffice.
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