The Supreme Court of Canada has erected a shield to protect those who post internet links to defamatory sites.
The Court was unanimous in ruling that anyone whose site supplies hyperlinks that lead to another site has not published it for the purposes of libel and defamation law.
The decision effectively gives the benefit of the doubt to internet posters who may be unaware that a site they link to could contain defamatory material about another party.
However, if a post linking to another site itself contains defamatory material, the poster may be liable in a defamation action.
The Court ruled against Wayne Crookes, owner of West Coast Title Search Ltd., who sued Jon Newton, an internet blogger, over allegations that he provided hyperlinks to material that defamed Mr. Crookes and the Green Party.
“Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content,” Madam Justice Rosalie Abella wrote.
“Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered ‘published’ by the hyperlinker.”
Dean Jobb, a journalism professor at University of King’s College, applauded the ruling for protecting a core purpose of the internet: the ability of users to share links to material posted online.
Those sharing the material often have not fully reviewed the material and may not even agree with it, said Prof. Jobb, author of Media Law for Canadian Journalists.
“The court recognizes that simply posting a link to material that may be libellous is a far cry from publishing or repeating the libel, let alone endorsing what has been said in the linked post,” he said.
“This is an important contribution to freedom of expression on the Internet.”
Barry Sookman, a lawyer at McCarthy Tétrault law firm, said that the court went out of its way to ensure that freedom of expression will not be impeded on the Internet.
“Even expressly encouraging people to read the content in a link is not enough to create liability,” Mr. Sookman said. “Liability would only arise from some repetition of the defamatory material.”
Private bloggers and others who post material on the internet will enjoy very wide protection to use links to defamatory materials without themselves being liable for publishing the referred to materials, he said.
“The court recognized that the Internet has and will develop many different types of links,” Mr. Sookman said. “It expressly left open for another day how links like deep automated links would be dealt with.”
Judge Abella said that the ruling will promote free expression and “respect the realities of the Internet” while at the same time giving plaintiffs a genuine opportunity to vindicate their reputations.