Defamation 2.0

In April 2011, the Supreme Court of Canada published a significant new ruling related to defamation and hyperlinks.  In the ruling, the Court decided that posting an article or story on your website that includes a hyperlink to defamatory material on someone else's website is not re-publication, and therefore is not defamation.

Traditionally, re-publication had been seen as another instance of defamation. That is to say, every publication of defamation is a new publication and the re-publisher can be subject to a defamation suit, just like the original publisher.

The original case came about when Jon Newton, an internet blogger, wrote a post on his political blog that allegedly defamed Wayne Crookes, a business owner and former executive with the federal Green Party.  Newton's post did not contain defamatory content but did include two hyperlinks - a "soft-link" that connects to a general search about the term - and a "hard-link" which was a direct hyperlink to another page.  The two external hyperlinks contained allegedly defamatory information and Crookes claimed that, by creating the hyperlinks and/or by refusing to remove them when told that they connected to allegedly defamatory remarks, Newton became a re-publisher of the articles and, therefore, a publisher of the allegedly defamatory information.

For example, this hyperlink here connects to a list of articles that I have written on this website. This is a "soft-link" - which means that the user still has to do some work exploring those writings and looking for any references to anyone I have defamed in my writing.  The "soft-link" in the Crookes case linked to an external website with ten listed articles, three of which Crookes alleged contained defamatory material.

This hyperlink here is a "hard-link" - which means it connects directly to an article I wrote.  The "hard-link" in the Crookes case linked to one article on a different external website, which Crookes alleged contained defamatory material.

Crookes claimed that Newton met the criteria for defamation (which we have written about in the past) which include:

  • there must be a “publication”
  • the publication must impart a defamatory meaning
  • the publication must be about another person

Crookes' legal actions were not limited to Jon Newton.  According to one post back in 2007, Crookes also sued Wikipedia, Google, and Yahoo for similar alleged offenses. Michael Geist, who is the Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, was also reportedly sued by Crookes for content existing on Geist's blogroll (an application on some blogsites that lists links to related blogs).  In response, Geist wrote: "In other words, I'm reportedly being sued for maintaining a blogroll that links to a site that links to a site that contains some allegedly defamatory third party comments."

In dismissing the lawsuit against Newton, the Court decided that way the links were presented on Newton's post was not a re-publication of the material. Specifically the Court wrote that "making reference to the existence and/or location of content, by hyperlink or otherwise, without more, is not publication of that content". The Court also recognized that the document you are hyperlinking to can be changed – which means that the ‘safe’ webpage you link to can suddenly contain content that is defamatory. To this end, the Court considered that hyperlinks are essentially content-neutral references, instead of republication.

There are some exceptions. If additional commentary in the original post could be considered "adoption or endorsement of the content of the hyperlinked text" then publication of a defamatory statement could be found.  Further, if Newton wrote that he agreed with the content then he could be liable for that defamatory content. Essentially, by promoting and supporting defamatory comments you can become a publisher of the defamatory comments.

In a blogpost that we wrote last month about the permanency of social media, we made a deliberate choice to avoid linking to the webpage with the possible defamatory comments about the NSO leader, or to the website about the Alberta Soccer Association, or to the blogsite describing the possible criminal activity of a CJHL hockey player. However, even if we did link to those sites, this new Supreme Court of Canada case explains that we would likely not be considered a publisher of any potentially defamatory information on those sites.

So why is this new case important to sport leaders? Most of our readers are affiliated with local, regional, provincial, or national sport organizations; the vast majority of which maintain their own websites and publish their own content. Plus, a growing number of sport organizations are establishing a social media presence through Facebook pages, blogs, and Twitter accounts. It is important to be aware of the law of defamation, and to manage your online activities and publications so that the risk of posting defamatory materials is minimized.

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