Calendar
- The vienna convention on the international sale of goods: should it be set aside with a contractual clause? May 31st, 2012
- Intellectual property abroad: international strategy to protect patents and trade-marks June 5th, 2012
- Ethics and lawyers ethics committees in hospital settings September 14th, 2012
The Use of Hyperlinks: The Supreme Court Allows Room for Immunity
November 3rd, 2011In a recent ruling (Crookes v. Newton, 2011 SCC 47), the Supreme Court considered whether a mere reference by way of hyperlink from one website to another website that contains defamatory statements constitutes defamation in and of itself. In its analysis, the Supreme Court examined what is meant by “publication” of a defamatory statement (required in order to find someone liable for defamation) and it considered the role of the Internet in general.
First, the Court concluded that in order to “publish” a defamatory statement, one must have control over its content (its creation and development). A hyperlinker who places a hyperlink on a website does not (generally) have control over the content linked to. In fact, the content of the site to which the hyperlink refers may change without the hyperlinker even knowing about it. Thus, the person who created or posted the content on the site linked to is the one “publishing” the defamatory libel, not the hyperlinker. A hyperlink is like a footnote that informs readers where they can find additional information and the ease in accessing that information through a hyperlink (instead of having to go to the library to consult the reference, for example) does not in any way change the fact that the reader is being referred to other content. In either case, the reader must take a step in order to access the content referred to and a hyperlink by itself, just like a footnote, is content neutral and cannot give rise to liability on the part of the person who inserts it in his text.
The Supreme Court then considered the consequences of imposing liability for the use of hyperlinks. The Court acknowledged the important role of hyperlinks in the effective and efficient operation of the Internet: a hyperlink is like a library catalogue, without which it would be virtually impossible to find the information sought. Given that an individual will not likely want to risk liability by incorporating a hyperlink referencing content over which he has no control, the Supreme Court acknowledged that the Internet would simply come to a standstill if such liability were to be imposed.
Accordingly, a mere hyperlink reference to another text cannot, by itself, expose the hyperlinker to an action for defamation. However, this is not a general rule nor is the immunity absolute; one must consider the context of the hyperlink and the manner in which the defamatory text is referred to. Thus, if the hyperlink itself expresses something defamatory, the hyperlinker may be liable.
The Supreme Court did not consider whether a hyperlink reference could, in certain cases, constitute copyright or trademark infringement. The purpose of a hyperlink is to refer an Internet user to another source of information and insofar as the reference is neutral and objective, the hyperlinker should not run a significant risk of liability, but the outcome could be different depending on the context of the hyperlink. Regardless, the principles stated by the Supreme Court will give some measure of protection for the use of hyperlinks, but it is always best to be prudent in order to avoid problems.
Pascal Lauzon, Partner at BCF.