Crookes v. Newton

Supreme Court of Canada

CITATION: Crookes v. Newton, 2011 SCC 47
DATE: October 19, 2011
DOCKET: 33412

Wayne Crookes and West Coast Title Search Ltd.
Jon Newton
Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, NetCoalition, British Columbia Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, WritersÕ Union of Canada, Professional Writers Association of Canada, PEN Canada and Canadian PublishersÕ Council

McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

REASONS FOR JUDGMENT: paras. 1 to 45
Abella J. (Binnie, LeBel, Charron, Rothstein and Cromwell JJ. concurring)

McLachlin C.J. and Fish J.

Deschamps J.

Show Headnote

The judgment of Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ. was delivered by ABELLA J. –

[1] To succeed in an action for defamation, the plaintiff must prove on a balance of probabilities that the defamatory words were published, that is, that they were “communicated to at least one person other than the plaintiff” (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28).

[2] A hyperlink is a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information. Clicking on the hyperlink connects the reader to that information.

[3] The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material.

I. Background

[4] Wayne Crookes is the President and sole shareholder of West Coast Title Search Ltd. He brought a series of lawsuits against those he claimed were responsible for allegedly defamatory articles published on a number of websites, arguing that the articles represented a “smear campaign” against him and other members of the Green Party of Canada.

[5] Jon Newton owns and operates a website in British Columbia containing commentary about various issues, including free speech and the Internet. One of the articles he posted on it was called “Free Speech in Canada”. The article contained hyperlinks to other websites, which in turn contained information about Mr. Crookes.

[6] Mr. Crookes sued Mr. Newton on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, Mr. Newton was publishing the defamatory information. One was a “shallow” hyperlink, which takes the reader to a webpage where articles are posted, and the other was a “deep” hyperlink, which takes the reader directly to an article (Matthew Collins, The Law of Defamation and the Internet (3rd ed. 2010), at para. 2.43). Both shallow and deep hyperlinks require the reader to click on the link in order to be taken to the content.

[7] The two hyperlinks, identified by underlining, were in the following excerpt from Mr. Newton’s posting:

[8] was hyperlinked to the OpenPolitics website where ten articles were posted. Three of those articles were said by Mr. Crookes to be defamatory. Wayne Crookes was hyperlinked to an allegedly defamatory article called “Wayne Crookes”, published anonymously on the website

[9] Mr. Crookes wrote to Mr. Newton asking him to remove the two hyperlinks. When he got no response, Mr. Crookes’ lawyer wrote to Mr. Newton, repeating the request. Mr. Newton refused to remove the hyperlinks.

[10] Mr. Crookes sued Mr. Newton for defamation in British Columbia. He did not allege that anything on Mr. Newton’s webpage was itself defamatory. Rather, he argued that by creating hyperlinks to the allegedly defamatory articles, or by refusing to remove those hyperlinks when told of their defamatory character, Mr. Newton himself became a publisher of the articles. By then, Mr. Newton’s article had been “viewed” 1,788 times. There is no information in the record about whether, or how many times, the hyperlinks themselves had been clicked on or followed.

[11] At trial (2008 BCSC 1424, 88 B.C.L.R. (4th) 395), Kelleher J. concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words. He agreed with Mr. Newton’s submission that hyperlinks were analogous to footnotes since they only refer to another source without repeating it. Since there was no repetition, there was no publication. And in the absence of evidence that anyone other than Mr. Crookes used the links and read the words to which they linked, there could not be a finding of publication.

[12] In the Court of Appeal, Saunders J.A., with whom Bauman J.A. concurred, held that the appeal should be dismissed (2009 BCCA 392, 96 B.C.L.R. (4th) 315). Agreeing with the trial judge, she found that reference to an article containing defamatory comments without repetition of the comments themselves is analogous to a footnote or a card index in a library and should not be found to constitute republication of the defamation. While some words in an article may suggest that a particular hyperlink is an “encouragement or invitation” to view the impugned site, she saw no such encouragement or invitation in this case. She also refused to accept that the number of “hits” on the article itself was a sufficient basis for drawing an inference that a third party had read the defamatory words (paras. 89 and 92).

[13] Prowse J.A. dissented. While she agreed that the mere fact that Mr. Newton had created hyperlinks to the impugned sites did not make him a publisher of the material found at the hyperlinked sites, she did not accept the “footnote analogy” as being dispositive of the publication issue (para. 60). In her view, the fact that Mr. Newton’s website had been viewed 1,788 times made it “unlikely” that no one had followed the hyperlinks and read the impugned articles (para. 70). Moreover, the context of Mr. Newton’s article suggests that readers were in fact encouraged or invited to click on the links. In her view, therefore, there was publication.

[14] In British Columbia, pursuant to the Libel and Slander Act, R.S.B.C. 1996, c. 263, publication is deemed to have occurred in certain situations. There is, however, no such presumption in relation to material published on the Internet. Nonetheless, Mr. Crookes argued that when a hyperlink has been inserted on a webpage, it should be presumed that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published. For the reasons that follow, I would not only reject such a presumption, I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.

[15] Mr. Crookes also complains that the Court of Appeal imposed too high a burden of proof, essentially requiring direct evidence that a third party followed the hyperlink to the allegedly defamatory content. This, he claims, deprives him of the ability to rely on an inference that at least one person followed one of the impugned hyperlinks to the allegedly defamatory content, and that the defamatory meaning has therefore been published. (See Gaskin v. Retail Credit Co., [1965] S.C.R. 297.) In view of my conclusion that hyperlinking is not, in and of itself, publication, there is no need to address this argument.

II. Analysis

[16] To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it (McNichol v. Grandy, [1931] S.C.R. 696, at p. 699). Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant:

[17] Mr. Crookes argues that, under this definition, a person who includes a hyperlink on a webpage has “published” any defamatory remarks to which the hyperlink leads, because that person has done an act which “has the effect of transferring the defamatory information” to any third person who clicks on the link.

[18] Under this sole disseminator/sole reader paradigm, the breadth of activity captured by the traditional publication rule is vast. In R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207, for example, a printer’s servant, whose only role in an act of publication was to “clap down” the printing press, was found responsible for the libels contained in that publication, despite the fact that he was not aware of the contents (p. 207). In Hird v. Wood (1894), 38 S.J. 234 (C.A.), pointing at a sign displaying defamatory words was held to be evidence of publication. Other cases have also held that acts merely facilitating communication can amount to publication: see, e.g., Buchanan v. Jennings, [2004] UKPC 36, [2005] 1 A.C. 115; Polson v. Davis, 635 F.Supp. 1130 (D. Kan. 1986), aff’d 895 F.2d 705 (10th Cir. 1990); Crain v. Lightner, 364 S.E.2d 778 (W. Va. 1987), at p. 785; and Spike v. Golding (1895), 27 N.S.R. 370 (C.A.). And in McNichol v. Grandy, the defendant was found to be liable when he raised his voice and made defamatory statements that were overheard by someone in another room.

[19] The publication rule has also captured the following range of conduct:

[20] Defendants obtained some relief from the rule’s significant breadth with the development of the “innocent dissemination” defence, which protects “those who play a secondary role in the distribution system, such as news agents, booksellers, and libraries”: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law (8th ed. 2006), at pp. 783-84; see also Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN”), at para. 89; Philip H. Osborne, The Law of Torts (4th ed. 2011), at p. 411. Such “subordinate distributors” may escape liability by showing that they “have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel” (SOCAN, at para. 89; Vizetelly v. Mudie’s Select Library Ltd., [1900] 2 Q.B. 170 (C.A.), at p. 180; Brown, at para. 7.12(6)(c); and also Sun Life Assurance Co. of Canada v. W. H. Smith & Son Ltd., [1933] All E.R. Rep. 432, at pp. 434 and 436).

[21] Recently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication. In Bunt v. Tilley, [2006] EWHC 407,[2006] 3 All E.R. 336 (Q.B.), considering the potential liability of an Internet service provider, the court held that in order to hold someone liable as a publisher, “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words” (para. 23 (emphasis in original); see also Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765 (Q.B.)).

[22] Acknowledging these developments, the question on this appeal is whether a simple reference – like a hyperlink – to defamatory information is the type of act that can constitute publication. Some helpful guidance on this point is available in two American cases. In Klein v. Biben, 296 N.Y. 638 (1946), the New York Court of Appeals decided that a statement saying “For more details about [the plaintiff], see the Washington News Letter in The American Hebrew, May 12, 1944” was not a republication of the May 12 libel.

[23] And in MacFadden v. Anthony, 117 N.Y.S.2d 520 (Sup. Ct. 1952), a complaint of defamation was dismissed in a case where a radio host “called attention to [an allegedly defamatory] article in Collier’s Magazine” (p. 521). Relying on Klein, the court concluded that referring to the article was neither a republication nor a publication of the libel.

[24] These cases were relied on in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1, wherethe plaintiff alleged that, by mentioning the Internet address of an online discussion forum, the publisher of a newsletter was responsible for republishing defamatory comments published on that site. Relying on MacFadden and Klein for the proposition that “reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment” (at para. 12), Hall J.A. held that there was no publication.

[25] I agree with this approach. It avoids a formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources. Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation in my view.

[26] A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not. Even where the goal of the person referring to a defamatory publication is to expand that publication’s audience, his or her participation is merely ancillary to that of the initial publisher: with or without the reference, the allegedly defamatory information has already been made available to the public by the initial publisher or publishers’ acts. These features of references distinguish them from acts in the publication process like creating or posting the defamatory publication, and from repetition.

[27] Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked. (See David Lindsay, Liability for the Publication of Defamatory Material via the Internet,Research Paper No. 10, University of Melbourne Centre for Media, Communications and Information Technology Law (2000), at pp. 14 and 78; M. Collins, The Law of Defamation and the Internet, at paras. 5.42 and 2.42 to 2.43.)

[28] These features – that a person who refers to other content generally does not participate in its creation or development –serve to insulate from liability those involved in Internet communications in the United States: see Communications Decency Act,47 U.S.C. § 230 (1996); see also Jack M. Balkin, “The Future of FreeExpression in a Digital Age” (2009), 36 Pepp. L. Rev. 427, at pp. 433-34; Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997); Barrett v. Rosenthal, 40 Cal.4th 33 (Cal. 2006); Fair Housing Council of San Fernando Valley v. Roommates.Com LLC, 521 F.3d 1157 (9th Cir. 2008).

[29] Although the person selecting the content to which he or she wants to link might facilitate the transfer of information (a traditional hallmark of publication), it is equally clear that when a person follows a link they are leaving one source and moving to another. In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content . (See Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, at paras. 97-102.)

[30] Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.

[31] This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law. This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

[32] Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation. That began to change when the Court modified the “honest belief” element to the fair comment defence in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, and when, in Grant, the Court developed a defence of responsible communication on matters of public interest. These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundational role of freedom of expression in the development of democratic institutions and values (Grant, at para. 1; Hill, at para. 101).

[33] Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications. See June Ross, “The Common Law of Defamation Fails to Enter the Age of the Charter” (1996), 35 Alta. L. Rev. 117; see also Jeremy Streeter, “The ‘Deception Exception’: A New Approach to Section 2(b) Values and Its Impact on Defamation Law” (2003), 61 U.T. Fac. L. Rev. 79; Denis W. Boivin, “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1996-1997), 22 Queen’s L.J. 229; Lewis N. Klar, Tort Law (4th ed. 2008), atpp. 746-47; Robert Danay, “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” (2010), 56 McGill L.J. 1; the Hon. Frank Iacobucci, “Recent Developments Concerning Freedom of Speech and Privacy in the Context of Global Communications Technology” (1999), 48 U.N.B.L.J. 189; and Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), at p. 870.

[34] The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged” (SOCAN, atpara. 40, per Binnie J.). Hyperlinks, in particular, are an indispensable part of its operation. As Matthew Collins explains, at para. 5.42:

[35] The centrality of the role of hyperlinks in facilitating access to information on the Internet was also compellingly explained by Anjali Dalal in “Protecting Hyperlinks and Preserving First Amendment Values on the Internet” (2011), 13 U. Pa. J. Const. L. 1017:

[36] 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. 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. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

[37] I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments. It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64:

[38] New activities on the Internet and the greater potential for anonymity amplify even further the ease with which a reputation can be harmed online:

[39] But I am not persuaded that exposing mere hyperlinks to the traditional publication rule ultimately protects reputation. A publication is defamatory if it both refers to the plaintiff, and conveys a defamatory meaning: Grant, at para. 28. These inquiries depend, respectively, on whether the words used or “the circumstances attending the publication are such as[] would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred” (Brown, at para. 6.1), and whether the words would “tend[] to lower a person in the estimation of right-thinking members of society” (Botiuk v. Toronto Free Press Publications Ltd., at para. 62). Defamatory meaning in the words may be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented” (Botiuk, at para. 62, citing Brown (2nd ed. 1994), at p.1-15). (See Brown, at paras. 5.2, 5.4(1)(a) and 6.1; Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116 (H. L.); Butler v. Southam Inc., 2001 NSCA 121, 197 N.S.R. (2d) 97; Bou Malhab v. Diffusion Métromédia CMR inc.,2011 SCC 9, [2011] 1 S.C.R. 214, at paras. 63 and 112; Botiuk, at para. 62.)

[40] Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory (Collins, at paras. 7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).

[41] Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations. As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to. 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.

[42] 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. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation. While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.

[43] I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.


[44] Nothing on Mr. Newton’s page is itself alleged to be defamatory. The impugned conduct in this case is Mr. Newton’s insertion of hyperlinks on his webpage. Mr. Crookes’s argument is that by linking to webpages and websites containing allegedly defamatory content, Mr. Newton has published that defamatory content. Since in my view the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, Mr. Crookes’s action against Mr. Newton cannot succeed. Moreover, even if Mr. Crookes had alleged that Mr. Newton should be understood, in context, to have expressed defamatory meaning, I would agree with the trial judge and the majority of the Court of Appeal that the statements containing the impugned hyperlinks on Mr. Newton’s page could not be understood, even in context with the hyperlinked documents, to express any opinion – defamatory or otherwise – on Mr. Crookes or the hyperlinked content.

[45] I would dismiss the appeal with costs.

Show Joint Concurring Reasons by McLachlin C.J. and Fish J

Show Reasons Concurring in the Result by Deschamps J.

Appeal dismissed with costs.

Solicitors for the appellants: Stewart, Aulinger & Company, Vancouver.

Solicitors for the respondent: Owen Bird Law Corporation, Vancouver.

Solicitors for the intervener the Canadian Civil Liberties Association: Torys, Toronto.

Solicitors for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic: Gowling Lafleur Henderson, Ottawa.

Solicitors for the intervener NetCoalition: Lenczner Slaght Royce Smith Griffin, Toronto.

Solicitors for the intervener the British Columbia Civil Liberties Association: Blake, Cassels & Graydon, Vancouver.

Solicitors for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, the Writers’ Union of Canada, the Professional Writers Association of Canada, PEN Canada and the Canadian Publishers’ Council: Farris, Vaughan, Wills & Murphy, Vancouver.

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