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Can a Mere Hyperlink Be Defamatory?

By Javad Heydary
Jun 22, 2011 5:00 AM PT

For obvious reasons, this author hopes that a hyperlink, on its own, cannot be defamatory. Yet this is precisely the question before Canada's Supreme Court in Crookes v. Newton. The defendant, who operates, authored an article entitled "Free Speech in Canada," including hyperlinks to further articles that were allegedly defamatory of the plaintiff.

Can a Mere Hyperlink Be Defamatory?

The tort of defamation requires publication and proof that the words are legally capable of bearing a defamatory meaning. At trial, the Supreme Court of British Columbia held that "without proof that persons other than the plaintiff visited the defendant's website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication." The court further analogized a hyperlink to a footnote in printed material -- it merely serves as a convenient tool for readers to voluntarily access that source or site:

"Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed? citing the proposition of the New York cases MacFadden v. Anthony and Kline v. Biben, "reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content>" (emphasis added).

Card Catalog

A majority of the Court of Appeal for British Columbia agreed. The court stated that the hyperlinks in question (quoted below) fell short of a statement of approbation or adoption:

"Under new developments, thanks to the lawsuit, I've just met Michael Pilling, who runs Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes."
Like the trial judge, the majority likened the hyperlinks to footnotes (or a card index in a library). On April 1st, 2010, the Supreme Court of Canada granted leave to appeal, and oral arguments were heard on December 7th. The decision is expected to be released within the next few weeks.

In the U.S., Section 230 of the Communications Decency Act may provide a blanket exemption for this type of activity (unless there is an allegation of criminality, breach of privacy or intellectual property claim). As the Supreme Court of California noted in Barrett v. Rosenthal:

"These provisions have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source?

"We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement" (emphasis added).

Basic Structure

Unless the Internet were to grind to a litigious halt, it seems that the approach of the Canadian Courts and U.S. Congress is a sensible one. The Internet was designed to be a series of linked pages. Hyperlinking is the Internet. The "inventor" of HTML, Sir Timothy John "Tim" Berners-Lee, put it best:

"The ability to refer to a document (or a person or anything else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else. There is no reason to have to ask before making a link to another site. But by the same token, you are responsible for what you say about other people, and their sites, etc., on the Web as anywhere" (emphasis in original).

Indeed, unless the site specifically repeats or endorses the linked content, then the raw link itself cannot reasonably be said to constitute a republication of the allegedly defamatory material.

Javad Heydary, a columnist for the E-Commerce Times, is chairman and managing director of Heydary Hamilton. His business law practice focuses on commercial transactions, e-commerce and franchising law. Heydary is also managing editor of Laws of .Com, a biweekly publication covering legal developments in e-commerce.

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