Crookes v Newton [2011] SCC 47
This is an important Canadian case which found that an internet publication is not defamatory if it only contains a hyperlink, unless the text accompanying the link is also defamatory.
The defendant, Crookes, operated a website which contained hyperlinks to websites which contained defamatory information about the claimant, Newton.
Newtown sued Crookes, claiming that the creation of a hyperlink on his website constituted publication of the defamatory information that was linked to.
The Court held that in order to prove the publication element of defamation a claimant must prove that the defendant has conveyed defamatory meaning to a single third party who has received it.
The Court determined that hyperlinks are analogous to footnotes or other reference systems – they communicate that content exists, but do not communicate what that content is. Even though a hyperlink makes it far easier to access the content referred to than a traditional footnote (in this case, a simple click), the Court determined that this did not change the content-neutrality of a hyperlink. They require some act on the part of a third party before they access the content. In the absence of repetition of the content, there is no defamation.
In this way, the defendant played no more than a passive instrumental role in making the defamatory content available.
However, if the hyperlink had been accompanied by words which repeated defamatory claims then it would have been found to be defamatory.
The Court ruled in favour of Crookes.