Hyperlinking to defamatory material on the internet does not constitute publishing the defamatory material itself, the Supreme Court of Canada ruled Wednesday.
The ruling will alleviate fears that holding someone liable for how they use hyperlinks on websites, personal ones or others, could cast a chill on internet use.
The responsible use of the internet and how traditional defamation law applies to modern technologies were at issue in this case, which was watched closely by media organizations and civil liberties groups.
How someone can protect their reputation in the internet age when content is passed around with the quick click of a button was also considered in the case. On social media websites such as Facebook and Twitter, users often share links, and the court's ruling could have dramatically disrupted that function had it gone the other way.
In its unanimous decision to dismiss the case, the court said a hyperlink, by itself, should never be considered "publication" of the content to which it refers. But that doesn't mean internet users shouldn't be careful about how they present links. The court says that if someone presents content from the hyperlinked material in a way that repeats the defamatory content, they can be considered publishers and are therefore at risk of being sued for defamation.
The court agreed with the arguments that applying the definition of publisher to someone who hyperlinks could have a chilling effect on internet use.
"The internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression," Madam Justice Rosalie Abella wrote.
"The potential 'chill' in how the internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control," the ruling said.
The court said hyperlinks are like footnootes in that they communicate that something exists but do not, by themselves, communicate its content. The person who wrote the secondary article may have no idea they were referenced, and, the person who wrote the primary article may have no idea if the material they linked to is changed at a later time.
The majority of judges agreed that although someone can facilitate the transfer of information by what he or she links to, an internet user who follows the link is leaving one source and moving to another. The creator of the words in the secondary article is the one publishing defamatory material, not the first author.
The Canadian Civil Liberties Association is pleased with the court's ruling. "The court I think tried to really recognize that a decision that went the other way might have curbed what people are willing to do on the internet and curb the usefulness of the internet," Cara Zwibel, a representative of the group, told CBC News.
The court struck the right balance between freedom of expression and protection of reputation, said Zwibel, adding that Facebook and Twitter users can continue to link to content without fear of being held responsible for it.
"A different decision would have had a much greater impact," she said.
B.C. dispute triggered case
The case was brought to the country's top court by British Columbia resident Wayne Crookes, a former Green Party campaign manager, and his company, West Coast Title Search Ltd.
Crookes was seeking damages from Jon Newton over links contained in an article that Newton wrote and posted on his own website in 2006.
Crookes said the article linked to another website that he said contained articles about him that were defamatory. Newton was asked to remove the links and he refused, prompting legal action by Crookes.
Newton's website did not reproduce any of the disputed material, nor make any comment about it.
Crookes's lawyer, Donald Jordan, argued that by creating the links, Newton was himself a publisher of the allegedly libellous material and that hyperlinks are part of the content of the primary article. By linking to a website, one is inviting and facilitating the reader to go to that website, it was argued.
Jordan said internet users should be responsible enough to review material and make a judgment before linking to it.
Newton's lawyers acknowledged in their defence that there may be circumstances when an internet author explicitly endorses an article they link to and in that case might be liable. But Newton's is not that kind of case, they said, and the court agreed Wednesday.
They argued that if a person can be found to have defamed another just by including a hyperlink to a defamatory website, freedom of expression is at risk.
Protecting reputation on the internet
While the Supreme Court ruling can be viewed as supportive of freedom of expression on the internet, the justices also say that freedom doesn't give people a licence to ruin reputations.
The internet has the capacity to endlessly replicate defamatory material and websites such as Facebook and Twitter mean everyone who uses them could potentially be considered a publisher.
Abella writes in the ruling, however, that allowing the publication rule to apply to hyperlinks would not ultimately protect reputation.
"If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content," the judgment reads.
Differing views from the judges
The ruling was unanimous in deciding to dismiss Crooke's appeal, but three of the judges offered their own opinions on the ruling.
Chief Justice Beverley McLachlin and Justice Morris Fish said that in their view, if the text around a hyperlink indicated adoption or endorsement of the content of the hyperlinked content, then the hyperlinker should be liable for the defamatory content.
Justice Marie Deschamps agreed that Newton's actions didn't amount to defamation but she disagreed with some of the arguments written by Abella. Deschamps said that excluding hyperlinks from the traditional concept of publication under defamation law risks favouring freedom of expression over one's reputation.
While she agrees with Abella that a plaintiff's best option is to go after the original creator of the content, Deschamps said that's not always possible especially when it's so easy to be anonymous on the internet.
"If no remedy exists against 'mere' hyperlinkers, persons defamed online may in many cases not be able to protect their reputations," she writes.
Deschamps says courts should take an approach that focuses on how a hyperlink makes defamatory information available rather than exclude all of them from the scope of current defamation laws.