Crookes v. Newton

Crookes v. Newton
Collection
Supreme Court Judgments
Date
2011-10-19
Neutral citation
2011 SCC 47
Report
[2011] 3 SCR 269
Case number
33412
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
British Columbia
Subjects
Torts
Notes
SCC Case Information: 33412
Decision Content
SUPREME COURT OF CANADA
Citation: Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269
Date: 20111019
Docket: 33412
Between:
Wayne Crookes and West Coast Title Search Ltd.
Appellants
and
Jon Newton
Respondent
- and -
Canadian Civil Liberties Association, Samuelson-Glushko
Canadian Internet Policy and Public Interest Clinic,
NetCoalition, British Columbia Civil Liberties Association,
Canadian Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association, Magazines Canada, Canadian
Journalists for Free Expression, Writers’ Union of Canada,
Professional Writers Association of Canada,
PEN Canada and Canadian Publishers’ Council
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 45)
Joint Concurring Reasons:
(paras. 46 to 53)
Reasons Concurring in the Result:
(paras. 54 to 130)
Abella J. (Binnie, LeBel, Charron, Rothstein and Cromwell JJ. concurring)
McLachlin C.J. and Fish J.
Deschamps J.
Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269
Wayne Crookes and West Coast Title Search Ltd. Appellants
v.
Jon Newton Respondent
and
Canadian Civil Liberties Association, Samuelson-Glushko
Canadian Internet Policy and Public Interest Clinic,
NetCoalition, British Columbia Civil Liberties Association,
Canadian Newspaper Association, Ad IDEM/Canadian Media
Lawyers Association, Magazines Canada, Canadian
Journalists for Free Expression, Writers’ Union of Canada,
Professional Writers Association of Canada,
PEN Canada and Canadian Publishers’ Council Interveners
Indexed as: Crookes v. Newton
2011 SCC 47
File No.: 33412.
2010: December 7; 2011: October 19.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Torts — Libel and slander — Publication — Internet — Defendant creating hyperlinks to allegedly defamatory articles — Whether hyperlinking, in and of itself, constitutes publication.
N owns and operates a website in British Columbia containing commentary about various issues, including free speech and the Internet. One of the articles he posted on it contained shallow and deep hyperlinks to other websites, which in turn contained information about C. C sued N on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, N was publishing the defamatory information. At trial, the judge concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words. The judge agreed that hyperlinks were analogous to footnotes since they only refer to another source without repeating it. Since there was no repetition, there was no publication. Furthermore, in the absence of evidence that anyone other than C used the links and read the words to which they linked, there could not be a finding of publication. A majority of the Court of Appeal upheld the decision, finding that while some words in an article may suggest that a particular hyperlink is an encouragement or invitation to view the impugned site, there was no such encouragement or invitation in this case. In addition, the number of “hits” on the article itself was an insufficient basis for drawing an inference in this case that a third party had read the defamatory words. The dissenting judge held that there was publication. The fact that N’s website had been viewed 1,788 times made it unlikely that no one had followed the hyperlinks and read the impugned article. Furthermore, the context of the article suggested that readers were encouraged or invited to click on the links.
Held: The appeal should be dismissed.
Per Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.: To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.
Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.
Here, nothing on N’s page is itself alleged to be defamatory. Since the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, N has not published the defamatory content and C’s action cannot succeed.
Per McLachlin C.J. and Fish J.: The reasons of the majority are agreed with substantially. However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a Web site is not enough to find publication.
Per Deschamps J.: Excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet. This blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.
In the common law of defamation, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood.
In the context of Internet hyperlinks, a simple reference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, is not publication of that content. In order to satisfy the requirements of the first component of publication, the plaintiff must establish, on a balance of probabilities, that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form. An act is deliberate if the defendant played more than a passive instrumental role in making the information available. In determining whether hyperlinked information is readily available, a court should consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is a shallow or a deep link, and whether the linked information is available to the general public (as opposed to being restricted). Any matter that has a bearing on the ease with which the referenced information could be accessed will be relevant to the inquiry.
For an action in defamation to succeed, the plaintiff must also satisfy the requirements of the second component of publication on a balance of probabilities, namely that a third party received and understood the defamatory information. This requirement can be satisfied either by adducing direct evidence or by asking the court to draw an inference based on, notably, whether the link was user-activated or automatic; whether it was a deep or a shallow link; whether the page contained more than one hyperlink and, if so, where the impugned link was located in relation to others; the context in which the link was presented to users; the number of hits on the page containing the hyperlink; the number of hits on the page containing the linked information (both before and after the page containing the link was posted); whether access to the Web sites in question was general or restricted; whether changes were made to the linked information and, if so, how they correlate with the number of hits on the page containing that information; and evidence concerning the behaviour of Internet users. Once the plaintiff establishes prima facie liability for defamation, the defendant can invoke any available defences.
Here, N acted as more than a mere conduit in making the hyperlinked information available. His action was deliberate. However, having regard to the totality of the circumstances, it cannot be inferred that the first, shallow hyperlink made the defamatory content readily available. The various articles were not placed on the other site’s home page and they had separate addresses. The fact that the reader had to take further action in order to find the defamatory material constituted a meaningful barrier to the receipt, by a third party, of the linked information. The second, deep hyperlink, however, did make the content readily available. All the reader had to do to gain access to the article was to click on the link, which does not constitute a barrier to the availability of the material. Thus, C has satisfied the requirements of the first component of publication on a balance of probabilities where this link is concerned. However, the nature of N’s article, the way the various links were presented and the number of hits on the article do not support an inference that the allegedly defamatory information was brought to the knowledge of some third person. The defamation action with respect to either of the impugned hyperlinks cannot succeed.
Cases Cited
By Abella J.
Applied: McNichol v. Grandy, [1931] S.C.R. 696; approved: Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1; referred to: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Gaskin v. Retail Credit Co., [1965] S.C.R. 297; Stanley v. Shaw, 2006 BCCA 467, 231 B.C.A.C. 186; Hiltz and Seamone Co. v. Nova Scotia (Attorney General) (1997), 164 N.S.R. (2d) 161, aff’d in part (1999), 173 N.S.R. (2d) 341; “Truth” (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997; Lambert v. Thomson, [1937] O.R. 341; Pullman v. Walter Hill & Co., [1891] 1 Q.B. 524; R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207; Hird v. Wood (1894), 38 S.J. 234; Buchanan v. Jennings, [2004] UKPC 36, [2005] 1 A.C. 115; Polson v. Davis, 635 F.Supp. 1130 (1986), aff’d 895 F.2d 705 (1990); Crain v. Lightner, 364 S.E.2d 778 (1987); Spike v. Golding (1895), 27 N.S.R. 370; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Vizetelly v. Mudie’s Select Library, Ltd., [1900] 2 Q.B. 170; Sun Life Assurance Co. of Canada v. W. H. Smith and Son Ltd. (1934), 150 L.T. 211; Bunt v. Tilley, [2006] EWHC 407, [2006] 3 All E.R. 336; Metropolitan International Schools Ltd. v. Designtechnica Corpn., [2009] EWHC 1765, [2011] 1 W.L.R. 1743; Klein v. Biben, 296 N.Y. 638 (1946); MacFadden v. Anthony, 117 N.Y.S.2d 520 (1952); Zeran v. America Online, Inc., 129 F.3d 327 (1997); Barrett v. Rosenthal, 146 P.3d 510 (2006); Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (2008); Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Reno v. American Civil Liberties Union, 521 U.S. 844 (1997); Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116; Butler v. Southam Inc., 2001 NSCA 121, 197 N.S.R. (2d) 97; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214.
By McLachlin C.J. and Fish J.
Referred to: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.
By Deschamps J.
Applied: McNichol v. Grandy, [1931] S.C.R. 696; referred to: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Gaskin v. Retail Credit Co., [1965] S.C.R. 297; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Gambrill v. Schooley, 93 Md. 48 (1901); Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801; Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1; MacFadden v. Anthony, 117 N.Y.S.2d 520 (1952); Klein v. Biben, 296 N.Y. 638 (1946); Lambert v. Thomson, [1937] O.R. 341; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Day v. Bream (1837), 2 M. & Rob. 54, 174 E.R. 212; R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207; Godfrey v. Demon Internet Ltd., [1999] 4 All E.R. 342; Dow Jones & Co. v. Gutnick, [2002] HCA 56, 210 C.L.R. 575; Stanley v. Shaw, 2006 BCCA 467, 231 B.C.A.C. 186; Smith v. Matsqui (Dist.) (1986), 4 B.C.L.R. (2d) 342; Wilson v. Meyer, 126 P.3d 276 (2005); Pond v. General Electric Co., 256 F.2d 824 (1958); Scott v. Hull, 259 N.E.2d 160 (1970); Byrne v. Deane, [1937] 1 K.B. 818; Hellar v. Bianco, 244 P.2d 757 (1952); Tacket v. General Motors Corp., 836 F.2d 1042 (1987); Urbanchich v. Drummoyne Municipal Council (1991), Aust. Torts Rep. ¶81-127; Frawley v. State of New South Wales, [2007] NSWSC 1379 (AustLII); Underhill v. Corser, [2010] EWHC 1195 (BAILII); Bunt v. Tilley, [2006] EWHC 407, [2006] 3 All E.R. 336; Metropolitan International Schools Ltd. v. Designtechnica Corpn., [2009] EWHC 1765, [2011] 1 W.L.R. 1743; Zeran v. America Online, Inc., 129 F.3d 327 (1997); Barrett v. Rosenthal, 146 P.3d 510 (2006); Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (2008); Islam Expo Ltd. v. The Spectator (1828) Ltd., [2010] EWHC 2011 (BAILII); Jameel v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359.
Statutes and Regulations Cited
Communications Decency Act of 1996, 47 U.S.C. §230 (1996).
Libel and Slander Act, R.S.B.C. 1996, c. 263, s. 2.
Supreme Court Rules, B.C. Reg. 221/90, r. 18A.
Authors Cited
Balkin, Jack M. “The Future of Free Expression in a Digital Age” (2009), 36 Pepp. L. Rev. 427.
Baynham, Bryan G., and Daniel J. Reid. “The Modern-Day Soapbox: Defamation in the Age of the Internet”, in Defamation Law: Materials prepared for the Continuing Legal Education seminar, Defamation Law 2010. Vancouver: Continuing Legal Education Society of British Columbia, 2010.
Boivin, Denis W. “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1996-1997), 22 Queen’s L.J. 229.
Brown, Raymond E. Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, vols. 1 and 2, 2nd ed. Toronto: Carswell, 1994 (loose-leaf updated 2011, release 3).
Collins, Matthew. The Law of Defamation and the Internet, 3rd ed. New York: Oxford University Press, 2010.
Dalal, Anjali. “Protecting Hyperlinks and Preserving First Amendment Values on the Internet” (2011), 13 U. Pa. J. Const. L. 1017.
Danay, Robert. “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” (2010), 56 McGill L.J. 1.
Gatley on Libel and Slander, 11th ed. by Patrick Milmo and W. V. H. Rogers. London: Sweet & Maxwell, 2008.
Iacobucci, Frank. “Recent Developments Concerning Freedom of Speech and Privacy in the Context of Global Communications Technology” (1999), 48 U.N.B.L.J. 189.
Klar, Lewis N. Tort Law, 4th ed. Toronto: Thomson Carswell, 2008.
Lidsky, Lyrissa Barnett. “Silencing John Doe: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855.
Linden, Allen M., and Bruce Feldthusen. Canadian Tort Law, 8th ed. Markham, Ont.: LexisNexis Butterworths, 2006.
Lindsay, David. Liability for the Publication of Defamatory Material via the Internet, Research Paper No. 10. Melbourne: University of Melbourne, Centre for Media, Communications and Information Technology Law, 2000.
Osborne, Philip H. The Law of Torts, 4th ed. Toronto: Irwin Law, 2011.
Ross, June. “The Common Law of Defamation Fails to Enter the Age of the Charter” (1996), 35 Alta. L. Rev. 117.
Sableman, Mark. “Link Law Revisited: Internet Linking Law at Five Years” (2001), 16 Berkeley Tech. L.J. 1273.
Streeter, Jeremy. “The ‘Deception Exception’: A New Approach to Section 2(b) Values and Its Impact on Defamation Law” (2003), 61 U.T. Fac. L. Rev. 79.
APPEAL from a judgment of the British Columbia Court of Appeal (Prowse, Saunders and Bauman JJ.A.), 2009 BCCA 392, 96 B.C.L.R. (4th) 315, 311 D.L.R. (4th) 647, 276 B.C.A.C. 105, 468 W.A.C. 105, 69 C.C.L.T. (3d) 66, [2010] 2 W.W.R. 271, [2009] B.C.J. No. 1832 (QL), 2009 CarswellBC 2401, affirming a decision of Kelleher J., 2008 BCSC 1424, 88 B.C.L.R. (4th) 395, 61 C.C.L.T. (3d) 148, [2009] 1 W.W.R. 482, [2008] B.C.J. No. 2012 (QL), 2008 CarswellBC 2237. Appeal dismissed.
Donald J. Jordan, Q.C., and Robert A. Kasting, for the appellants.
Daniel W. Burnett and Harvey S. Delaney, for the respondent.
Wendy Matheson, Andrew Bernstein and Molly Reynolds, for the intervener the Canadian Civil Liberties Association.
Richard G. Dearden and Wendy J. Wagner, for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.
William C. McDowell, Marguerite F. Ethier and Naomi D. Loewith, for the intervener NetCoalition.
Roy W. Millen, for the intervener the British Columbia Civil Liberties Association.
Robert S. Anderson, Q.C., and Ludmila B. Herbst, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, the Writers’ Union of Canada, the Professional Writers Association of Canada, PEN Canada and the Canadian Publishers’ Council.
The judgment of Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
[1] Abella J. — To succeed in an action for defamation, the plaintiff must prove on a balance of probabilities that the defamatory words were published, that is, that they were “communicated to at least one person other than the plaintiff” (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28).
[2] A hyperlink is a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information. Clicking on the hyperlink connects the reader to that information.
[3] The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material.
I. Background
[4] Wayne Crookes is the President and sole shareholder of West Coast Title Search Ltd. He brought a series of lawsuits against those he claimed were responsible for allegedly defamatory articles published on a number of websites, arguing that the articles represented a “smear campaign” against him and other members of the Green Party of Canada.
[5] Jon Newton owns and operates a website in British Columbia containing commentary about various issues, including free speech and the Internet. One of the articles he posted on it was called “Free Speech in Canada”. The article contained hyperlinks to other websites, which in turn contained information about Mr. Crookes.
[6] Mr. Crookes sued Mr. Newton on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, Mr. Newton was publishing the defamatory information. One was a “shallow” hyperlink, which takes the reader to a webpage where articles are posted, and the other was a “deep” hyperlink, which takes the reader directly to an article (Matthew Collins, The Law of Defamation and the Internet (3rd ed. 2010), at para. 2.43). Both shallow and deep hyperlinks require the reader to click on the link in order to be taken to the content.
[7] The two hyperlinks, identified by underlining, were in the following excerpt from Mr. Newton’s posting:
Under new developments, . . . I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.
We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future. [A.R., at p. 125]
[8] OpenPolitics.ca was hyperlinked to the Open Politics website where several articles were posted and were said by Mr. Crookes to be defamatory. Wayne Crookes was hyperlinked to an allegedly defamatory article called “Wayne Crookes”, published anonymously on the website www.USGovernetics.com.
[9] Mr. Crookes wrote to Mr. Newton asking him to remove the two hyperlinks. When he got no response, Mr. Crookes’ lawyer wrote to Mr. Newton, repeating the request. Mr. Newton refused to remove the hyperlinks.
[10] Mr. Crookes sued Mr. Newton for defamation in British Columbia. He did not allege that anything on Mr. Newton’s webpage was itself defamatory. Rather, he argued that by creating hyperlinks to the allegedly defamatory articles, or by refusing to remove those hyperlinks when told of their defamatory character, Mr. Newton himself became a publisher of the articles. By then, Mr. Newton’s article had been “viewed” 1,788 times. There is no information in the record about whether, or how many times, the hyperlinks themselves had been clicked on or followed.
[11] At trial, Kelleher J. concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words (2008 BCSC 1424, 88 B.C.L.R. (4th) 395). He agreed with Mr. Newton’s submission that hyperlinks were analogous to footnotes since they only refer to another source without repeating it. Since there was no repetition, there was no publication. And in the absence of evidence that anyone other than Mr. Crookes used the links and read the words to which they linked, there could not be a finding of publication.
[12] In the Court of Appeal, Saunders J.A., with whom Bauman J.A. concurred, held that the appeal should be dismissed (2009 BCCA 392, 96 B.C.L.R. (4th) 315). Agreeing with the trial judge, she found that reference to an article containing defamatory comments without repetition of the comments themselves is analogous to a footnote or a card index in a library and should not be found to constitute republication of the defamation. While some words in an article may suggest that a particular hyperlink is an “encouragement or invitation” to view the impugned site, she saw no such encouragement or invitation in this case. She also refused to accept that the number of “hits” on the article itself was a sufficient basis for drawing an inference that a third party had read the defamatory words (paras. 89 and 92).
[13] Prowse J.A. dissented. While she agreed that the mere fact that Mr. Newton had created hyperlinks to the impugned sites did not make him a publisher of the material found at the hyperlinked sites, she did not accept the “footnote analogy” as being dispositive of the publication issue (para. 60). In her view, the fact that Mr. Newton’s website had been viewed 1,788 times made it “unlikely” that no one had followed the hyperlinks and read the impugned articles (para. 70). Moreover, the context of Mr. Newton’s article suggests that readers were in fact encouraged or invited to click on the links. In her view, therefore, there was publication.
[14] In British Columbia, pursuant to the Libel and Slander Act, R.S.B.C. 1996, c. 263, publication is deemed to have occurred in certain situations. There is, however, no such presumption in relation to material published on the Internet. Nonetheless, Mr. Crookes argued that when a hyperlink has been inserted on a webpage, it should be presumed that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published. For the reasons that follow, I would not only reject such a presumption, I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.
[15] Mr. Crookes also complains that the Court of Appeal imposed too high a burden of proof, essentially requiring direct evidence that a third party followed the hyperlink to the allegedly defamatory content. This, he claims, deprives him of the ability to rely on an inference that at least one person followed one of the impugned hyperlinks to the allegedly defamatory content, and that the defamatory meaning has therefore been published. (See Gaskin v. Retail Credit Co., [1965] S.C.R. 297.) In view of my conclusion that hyperlinking is not, in and of itself, publication, there is no need to address this argument.
II. Analysis
[16] To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it (McNichol v. Grandy, [1931] S.C.R. 696, at p. 699). Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant:
There are no limitations on the manner in which defamatory matter may be published. Any act which has the effect of transferring the defamatory information to a third person constitutes a publication.
(Stanley v. Shaw, 2006 BCCA 467, 231 B.C.A.C. 186, at para. 5, citing Raymond E. Brown, The Law of Defamation in Canada (2nd ed.), vol. 1, at No. 7.3.)
See also Hiltz and Seamone Co. v. Nova Scotia (Attorney General) (1997), 164 N.S.R. (2d) 161 (S.C.), at para. 21, aff’d in part (1999), 173 N.S.R. (2d) 341 (C.A.); Grant, at para. 119; “Truth” (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997 (P.C.); Lambert v. Thomson, [1937] O.R. 341 (C.A.), per Rowell C.J.O.; Pullman v. Walter Hill & Co., [1891] 1 Q.B. 524 (C.A.), at p. 527, per Lord Esher M.R.
[17] Mr. Crookes argues that, under this definition, a person who includes a hyperlink on a webpage has “published” any defamatory remarks to which the hyperlink leads, because that person has done an act which “has the effect of transferring the defamatory information” to any third person who clicks on the link.
[18] Under this sole disseminator/sole reader paradigm, the breadth of activity captured by the traditional publication rule is vast. In R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207, for example, a printer’s servant, whose only role in an act of publication was to “clap down” the printing press, was found responsible for the libels contained in that publication, despite the fact that he was not aware of the contents (p. 207). In Hird v. Wood (1894), 38 S.J. 234 (C.A.), pointing at a sign displaying defamatory words was held to be evidence of publication. Other cases have also held that acts merely facilitating communication can amount to publication: see, e.g., Buchanan v. Jennings, [2004] UKPC 36, [2005] 1 A.C. 115; Polson v. Davis, 635 F.Supp. 1130 (D. Kan. 1986), aff’d 895 F.2d 705 (10th Cir. 1990); Crain v. Lightner, 364 S.E.2d 778 (W. Va. 1987), at p. 785; and Spike v. Golding (1895), 27 N.S.R. 370 (S.C. in banco). And in McNichol v. Grandy, the defendant was found to be liable when he raised his voice and made defamatory statements that were overheard by someone in another room.
[19] The publication rule has also captured the following range of conduct:
[The defamatory meaning] may be communicated directly by the defendant either orally, or in some written or printed form, or by way of a symbolic ceremony, dramatic pantomime, mime, brochure, gesture, handbill, letter, photograph, placard, poster, sign, or cartoon. It may be inscribed on a blackboard, posted on a mirror or a telephone pole, or placed on the wall of a building or the gable wall of the defendant’s property, or on the front of a cheque, or entered in a database, or accessed on or downloaded from a website on the internet. It may appear on an ariel banner flown behind an airplane, or someone’s attention may be drawn by the defendant to a poster, or a defamatory writing already in circulation. A third person may be given access to defamatory material, or defamatory matter may be left in a place where others can see it, or the defendant may request others to go to a place where the defamatory information is available to see and read it, or it may be set into motion as a result of the defendant’s death. In each case there is a publication. [Footnotes omitted.]
(Raymond E. Brown, Brown on Defamation (2nd ed. (loose-leaf)), at para. 7.3)
[20] Defendants obtained some relief from the rule’s significant breadth with the development of the “innocent dissemination” defence, which protects “those who play a secondary role in the distribution system, such as news agents, booksellers, and libraries”: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law (8th ed. 2006), at pp. 783-84; see also Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN”), at para. 89; Philip H. Osborne, The Law of Torts (4th ed. 2011), at p. 411. Such “subordinate distributors” may escape liability by showing that they “have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel” (SOCAN, at para. 89; Vizetelly v. Mudie’s Select Library, Ltd., [1900] 2 Q.B. 170 (C.A.), at p. 180; Brown, at para. 7.12(6)(c); and also Sun Life Assurance Co. of Canada v. W. H. Smith and Son Ltd. (1934), 150 L.T. 211 (C.A.), at pp. 212-14).
[21] Recently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication. In Bunt v. Tilley, [2006] EWHC 407, [2006] 3 All E.R. 336 (Q.B.), considering the potential liability of an Internet service provider, the court held that in order to hold someone liable as a publisher, “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words” (para. 23 (emphasis in original); see also Metropolitan International Schools Ltd. v. Designtechnica Corpn., [2009] EWHC 1765, [2011] 1 W.L.R. 1743 (Q.B.)).
[22] Acknowledging these developments, the question on this appeal is whether a simple reference — like a hyperlink — to defamatory information is the type of act that can constitute publication. Some helpful guidance on this point is available in two American cases. In Klein v. Biben, 296 N.Y. 638 (1946), the New York Court of Appeals decided that a statement saying “For more details about [the plaintiff], see the Washington News Letter in The American Hebrew, May 12, 1944” (p. 639) was not a republication of the May 12 libel.
[23] And in MacFadden v. Anthony, 117 N.Y.S.2d 520 (Sup. Ct. 1952), a complaint of defamation was dismissed in a case where a radio host “called attention to [an allegedly defamatory] article in Collier’s Magazine” (p. 521). Relying on Klein, the court concluded that referring to the article was neither a republication nor a publication of the libel.
[24] These cases were relied on in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1, where the plaintiff alleged that, by mentioning the Internet address of an online discussion forum, the publisher of a newsletter was responsible for republishing defamatory comments published on that site. Relying on MacFadden and Klein for the proposition that “reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment” (para. 12), Hall J.A. held that there was no publication.
[25] I agree with this approach. It avoids a formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources. Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation in my view.
[26] A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not. Even where the goal of the person referring to a defamatory publication is to expand that publication’s audience, his or her participation is merely ancillary to that of the initial publisher: with or without the reference, the allegedly defamatory information has already been made available to the public by the initial publisher or publishers’ acts. These features of references distinguish them from acts in the publication process like creating or posting the defamatory publication, and from repetition.
[27] Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked. (See David Lindsay, Liability for the Publication of Defamatory Material via the Internet (2000), at pp. 14 and 78-79; Collins, at paras. 2.42 to 2.43 and 5.42.)
[28] These features — that a person who refers to other content generally does not participate in its creation or development — serve to insulate from liability those involved in Internet communications in the United States: see Communications Decency Act of 1996, 47 U.S.C. §230 (1996); see also Jack M. Balkin, “The Future of Free Expression in a Digital Age” (2009), 36 Pepp. L. Rev. 427, at pp. 433-34; Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006); Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008).
[29] Although the person selecting the content to which he or she wants to link might facilitate the transfer of information (a traditional hallmark of publication), it is equally clear that when a person follows a link they are leaving one source and moving to another. In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content. (See Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, at paras. 97-102.)
[30] Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.
[31] This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law. This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.
[32] Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation. That began to change when the Court modified the “honest belief” element to the fair comment defence in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, and when, in Grant, the Court developed a defence of responsible communication on matters of public interest. These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundational role of freedom of expression in the development of democratic institutions and values (Grant, at para. 1; Hill, at para. 101).
[33] Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications. See June Ross, “The Common Law of Defamation Fails to Enter the Age of the Charter” (1996), 35 Alta. L. Rev. 117; see also Jeremy Streeter, “The ‘Deception Exception’: A New Approach to Section 2(b) Values and Its Impact on Defamation Law” (2003), 61 U.T. Fac. L. Rev. 79; Denis W. Boivin, “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1996-1997), 22 Queen’s L.J. 229; Lewis N. Klar, Tort Law (4th ed. 2008), at pp. 746-47; Robert Danay, “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” (2010), 56 McGill L.J. 1; the Hon. Frank Iacobucci, “Recent Developments Concerning Freedom of Speech and Privacy in the Context of Global Communications Technology” (1999), 48 U.N.B.L.J. 189; Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), at p. 870.
[34] The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged” (SOCAN, at para. 40, per Binnie J.). Hyperlinks, in particular, are an indispensable part of its operation