The Supreme Court of Canada has ruled that hyperlinks are not considered publication for the purposes of defamation. In a unanimous decision, the Court held that hyperlinks alone are not capable of libel. As Justice Rosalie Abella wrote:
Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. 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.
The Court reasoned that hyperlinks function like footnotes in that they are content neutral. Further, the author of the hyperlink has no control over the content contained at the end of the link.
The judgment comes out of a case involving a blog post on a B.C. website. The post linked to external articles that allegedly defamed business owner Wayne Crookes. When the website operator, Jon Newton, refused to delete the post, Crookes launched legal action claiming that the hyperlinks to the articles amounted to defamation.
The citation for the case is Crookes v Newton, 2011 SCC 47.