Tuesday, October 18, 2011

Crookes v. Newton Decision from SCC due on Wednesday October 19, 2011.

Jon Newton

On Wednesday, Oct. 19, 2011 at 9:45 the Supreme Court of Canada ("SCC") will announce its long awaited decision in Crookes v. Newton, in which the issue was whether merely providing a hyperlink to an article, without quoting from it or commenting on it, could constitute publication of the impugned article and hence could in itself be defamatory. Here's the SCC summary.
The case clearly raises very important issues. There was a lengthy dissent in the British Columbia Court of Appeal judgment below.

The outcome could have significant and immediate implications for copyright law. For example, Access Copyright is taking the position in a current hearing that merely linking to a website creates an entitlement to payment as part of the its proposed post-secondary tariff that seeks a 1,300% increase over the current basic rate.

Indeed, if the Court holds that mere hyperlinking creates liability, there could be enormous implications for the internet generally. The "World Wide Web" (i.e. "www”) was and is built upon hyperlinks.



  1. What an understatement: the World Wide Web consists solely of hyperlinks!

  2. Liability for defamation is entirely different to the Access Copyright argument that linking to content can be used as a measure of likely use of that content. This is a licensing issue, not a liability issue, with the link being a proxy for probable downstream activity. And in the context of liability, the two situations are quite different anyway. Linking to defamatory (or allegedly defamatory) material doesn't of itself make the "linker" liable in defamation. A professor who supplies a link with the intention of enabling hundreds of students to copy the material individually is effectively sub-contracting an activity that would clearly require copyright permission if that material was copied and distributed directly. This is explicitly recognized in, for example, UK copyright law. The Newton decision is significant, and makes sense. There is a limit to har far you can bend it to fit completely different circumstances.