Wednesday, October 19, 2011

Crookes v. Newton - Newton Wins - Hyperlinking is Not publication

The Supreme Court of Canada has ruled that Newton wins and hyperlinking is not "publication". Analysis to follow. Here's the headnote:

       Per Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.:  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.  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.  Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers.  This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.
                    Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”.  Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content.  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.  Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
                    A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.  When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. 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.
                    Here, nothing on N’s page is itself alleged to be defamatory.  Since the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, N has not published the defamatory content and C’s action cannot succeed.
                    Per McLachlin C.J. and Fish J.:  The reasons of the majority are agreed with substantially. However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.  A mere general reference to a website is not enough to find publication.
                    Per Deschamps J.:  Excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet.  This blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.
                    In the common law of defamation, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood.
                    In the context of Internet hyperlinks, a simple reference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, is not publication of that content.  In order to satisfy the requirements of the first component of publication, the plaintiff must establish, on a balance or probabilities, that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form.  An act is deliberate if the defendant played more than a passive instrumental role in making the information available.  In determining whether hyperlinked information is readily available, a court should consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is a shallow or a deep link, and whether the linked information is available to the general public (as opposed to being restricted).  Any matter that has a bearing on the ease with which the referenced information could be accessed will be relevant to the inquiry.
                    For an action in defamation to succeed, the plaintiff must also satisfy the requirements of the second component of publication on a balance of probabilities, namely that a third party received and understood the defamatory information.  This requirement can be satisfied either by adducing direct evidence or by asking the court to draw an inference based on, notably, whether the link was user-activated or automatic; whether it was a deep or a shallow link; whether the page contained more than one hyperlink and, if so, where the impugned link was located in relation to others; the context in which the link was presented to users; the number of hits on the page containing the hyperlink; the number of hits on the page containing the linked information (both before and after the page containing the link was posted); whether access to the Web sites in question was general or restricted; whether changes were made to the linked information and, if so, how they correlate with the number of hits on the page containing that information; and evidence concerning the behaviour of Internet users.  Once the plaintiff establishes prima facie liability for defamation, the defendant can invoke any available defences.
                    Here, N acted as more than a mere conduit in making the hyperlinked information available.  His action was deliberate.  However, having regard to the totality of the circumstances, it cannot be inferred that the first, shallow hyperlink made the defamatory content readily available.  The various articles were not placed on N’s site’s home page and they had separate addresses.  The fact that the reader had to take further action in order to find the defamatory material constituted a meaningful barrier to the receipt, by a third party, of the linked information.  The second, deep hyperlink, however, did make the content readily available.  All the reader had to do to gain access to the article was to click on the link, which does not constitute a barrier to the availability of the material.  Thus, C has satisfied the requirements of the first component of publication on a balance of probabilities where this link is concerned.  However, the nature of N’s article, the way the various links were presented and the number of hits on the article do not support an inference that the allegedly defamatory information was brought to the knowledge of some third person.  The defamation action with respect to either of the impugned hyperlinks cannot succeed. 

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