The nature of the liability (if any) faced by those who “hyperlink” to defamatory material on another website has been considered by common law courts on a number of occasions but has not yet been the subject of a definitive ruling. Should a person who draws attention to a defamatory material and provides a link be liable for the defamatory content to which attention is drawn and access provided? Or should should liability only arise when the “hyperlinker” is given notice of the defamatory nature of the material to which a link is provided? These questions may soon become much clearer as result of a case now pending before the Supreme Court of Canada.On 1 April 2010 that Court gave the plaintiff in the case of Crookes v Newton permission to appeal. The Court of Appeal of British Columbia had, by a majority of 2:1, upheld the trial judge’s decision dismissing the claim (2009 BCCA 392). The plaintiff, Wayne Crookes, alleged that he has been defamed in various articles which first appeared on the Internet in 2005. The defendant, Jon Newton, owns and operates the website www.p2pnet.net. On July 18, 2006, he wrote an article, headed “Free Speech in Canada”, which hyperlinked one of the articles, as well as the website containing the other impugned articles. Those articles, in turn, were hyperlinked to one another. Mr. Crookes contended that, by creating these hyperlinks, or by refusing to remove them when advised of their defamatory character, Mr. Newton became a publisher of the impugned articles found at the hyperlinked websites. Mr. Crookes and his company, West Coast Title Search Ltd., brought an action against Mr. Newton for damages for defamation.
The British Columbia Court of Appeal looked at three issues: (i) whether or not hyperlinked articles attract a presumption of publication, (ii) whether hyperlinking is a form of publication, and (iii) whether the volume of hits of a website can lead to an inference of publication.
It was held that hyperlinking does not give rise to a presumption of publication. Relying on its decision in Carter v. BC Federation of Foster Parents Association, 2005 BCCA 398, the Court held that the publication of a web address or hyperlink does not result in republication of the material on the website. The majority held that the hyperlinking in Mr Newton’s case did not amount to publication. However, the dissenting judget, Prowse JA, held that the Mr. Newton’s piece contained words of encouragement and invitation that led to the conclusion that the hyperlink was a publication. The majority also held that the number of hits on the article was insufficient basis to infer that the user followed the hyperlink. The case is discussed on the Canadian Supreme Court blog, The Court. There is also a discussion of the case on the SLA.ca blog.
The question of publication by hyperlinking has not been specifically considered by the English courts. In the case of Metropolitan International Schools v Designtechnica  EWHC 1765 (QB)) Eady J decided that there needed to be a “mental element” in responsibility for publication so that the operators of a search engine were not “publishers” of the automatically generated “snippets” of information shown in the search results. Furthertmore, even after the search engine operator had been informed of the defamatory material it was not liable as publisher whilst it was operating a “take down” procedure.
We will report further on the progress of Crookes v Newton when more information is available.