Pauline Wong is the Assistant Director of IP Osgoode.
Today, the Supreme Court of Canada released its decision in Crookes v Newton, which considers whether the author of a website article can be liable for defamation by hyperlinking to defamatory material on the Internet.
The Court dismissed the appeal and found Newton not liable for defamation. Justice Abella, writing for a majority of six, held that hyperlinks are content neutral references and do not constitute a publication. Chief Justice McLachlin and Justice Fish co-authored reasons agreeing substantially with the majority, but found that 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. Justice Deschamps agreed in the result, but gave significantly different reasons. Deschamps outlined a comprehensive test for defamation by hyperlinking, found that at least one of the impugned hyperlinks was a deliberate act constituting a publication of defamatory content, but found insufficient evidence that the defamatory content was received by a third person.
This decision could have implications for copyright law and whether hyperlinking could be considered a publication or reproduction.
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3 Responses
As counsel for Mr. Crookes, I was asked to provide some brief comments on the decision. Here they are:
1. The large issue at bar was the extent to which a website owner should be responsible for what appears on his website. The court has decided that a website owner is not legally responsible for the defamatory hyperlinks which he has voluntarily added to his site and which he has refused to take down, when requested. The court decided that in the balance between freedom of expression and protection of reputation, the balance, in this set of circumstances, should be weighed in favour of freedom of expression.
2. As an advocate, it is not my place to provide a technical critique of the three sets of reasons. As an advocate, it is my role to accept what has been said and see what opportunities and barriers are created by this judgment in future cases where I may act as counsel. Nine intelligent jurists thought deeply about this unique issue and provided a response which will be woven into the legal fabric.
3. The approach to the problem, however, was far from unanimous. There were 3 separate opinions from the court–a 6 judge opinion, a 2 judge opinion and a one judge opinion. Unfortunately, none of the judges shared the Appellant’s approach to the problem. At the time the judgment was handed down, 2 of the 6 judges who rendered the majority opinion were no longer members of the court, meaning that the court, as presently constituted, decided 4/2/1. Both the 6 judge opinion and the 2 judge opinion suggested that they would likely expect to review the judgment in the future, given technological change and, it can be inferred, a different fact pattern. This lack of unanimity and the suggestion of further development limits the strength of the judgment. It appears inevitable that in the future, maybe a year or two, maybe a decade or two, the court will be looking at a similar question to see whether the balance between freedom of expression and protection of reputation in Crookes v. Newton is the correct one.
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