Defamation is an intentional tort that involves a false communication harming a person’s reputation or tending to lower the regard in which a person is held. 

For the tort to arise, the defamatory statement must be communicated or published.  To prove publication, a Plaintiff has to establish that the Defendant has conveyed the defamatory meaning to at least one third party, who has received it.

Defamation is tricky at the best of times. The internet has made defamation cases even trickier.

There are now a number of cases that have been decided at a reasonably high level of court dealing with defamatory remarks made on the internet, both in articles and on blogs.  Most of these decisions raise the same issues as are raised in the context of newspaper articles.  One unique feature of the internet as compared to newspapers, however, is the ubiquitous hyperlink.  Where does that fit in?

The role of the hyperlink in a defamation case has now received attention from the Supreme Court of Canada.  On October 19, 2011, the Supreme Court of Canada released its decision in the B.C. case of Crookes v. Newton ([2011] S.C.J. No. 47). 

Crookes had sued Newton for posting an article on his website containing hyperlinks to other websites.  These other websites contained information about Crookes which was defamatory.  Crookes took the position that by using those hyperlinks,Newtonwas “publishing” the defamatory information. 

The Supreme Court of Canada ruled against Crookes.  The Court held that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.  Reference to an article containing defamatory comment, without actually repeating the comment itself, cannot be considered as a re-publication of that comment.  It simply amounts to a communication that something exists, or where it exists, rather than a communication of the statement itself.  The Court referred to hyperlinks as being in the nature of reference, similar to footnotes.  The fact that access to the defamatory content would be far easier with a hyperlink than with a footnote does not change the fact that the hyperlink in itself is content neutral. 

In fact, this is really the only practical result from a case like this.  If the use of a hyperlink could give rise to liability for damages, people would have to examine the entire content of every website they wished to hyperlink to their own publication, or avoid the use of hyperlinks altogether.  Implicitly, the Court is saying that Crookes should have focused his attention on the real culprit here, being the author of the actual defamatory content.

Defamation is tricky at the best of times.  The internet has made defamation cases even trickier.