Amanda Carpenter is a JD candidate at Osgoode Hall Law School
Last Tuesday, the British Columbia Court of Appeal affirmed an important precedent-setting decision of the British Columbia Supreme Court regarding online defamation in Crookes v. Newton., 2009 BCCA 392. In the decision, Justice Saunders and Bauman found against the plaintiff Wayne Crookes who argued that the defendant was liable for linking to defamatory material online. Justice Prowse expressed a dissenting opinion. One can find more information concerning the decision of the Supreme Court of British Columbia in the article “Free Speech Online Buoyed, but Concerns Remain”.
In the decision of the Supreme Court, Justice Kelleher dismissed Mr. Crookes’ action on the basis that the hyperlinks did not constitute ‘republication’ by comparing the hyperlinks to a footnote where the reader has no actual knowledge of the defamatory material. At the Court of Appeal, the judges addressed three points in their decision: whether or not there is a basis for finding a presumption of publication of the hyperlinked articles, whether or not hyperlinking is a form of publication, and whether or not one can infer publication to at least one party.
All the judges agreed that there was no presumption of publication. However on the second point the dissenting judge held that the hyperlinks (when viewed in the context of the Newton article as a whole) did not operate as a mere footnote. She found this because the article deals with free speech and defamation, and the reference to lawsuits involving Mr. Crookes would have served as “words of encouragement” to look further. Also on the third point the dissenting judge held that one can infer publication to at least one party since the article on Mr. Newton’s p2pnet site had been viewed 1,788 times despite Mr. Crookes not possessing evidence that a third party had actually accessed the hyperlink to the impugned articles.
The opinion of the dissenting judge is worthy of more examination, in that she found that the context of the hyperlinks in Mr. Newton’s article constituted an invitation to look further while the majority judgement held that the same context would “alert the reader to the potential of untrue content”. What a hyperlink implies – an invitation to investigate a defamation suit further or not, or whether or not the information it points to should be taken as the truth – depends on the context and also on the particular label used for the hyperlink. In most instances, like that of Wikipedia, a hyperlink with a label of a proper name like Wayne Crookes would imply that one would click the link for more true information about this person. The question is this: given the context of Mr. Newton’s website – free speech and defamation suits on the internet – what is implied by the label of the hyperlink?
The other point raised by the dissenting judge here is whether publication can be inferred. The question needed to be answered here is whether anyone clicked on the link and viewed the page in the relevant jurisdiction of British Columbia. Mr. Newton’s article had 1,788 hits, but there were no further statistics. Many websites do have further statistics: not only will they count the number of hits for each page, but they will also list which countries contributed to what percentage of the hits. They will also track the referrers – that is, which other websites are linking to their pages. If the allegedly defaming websites tracked their referrers, they could determine how many people followed Mr. Newton’s hyperlink. Additionally, if Mr. Newton tracked how many people from Canada had viewed his page, these two pieces of information together would give a good idea of the odds that someone from British Columbia had viewed the page and then followed the hyperlink.
In paragraph 84 the majority states that the particular circumstances of an article, such as its context, may result in another judgement as to whether there will be liability for hyperlinks. Nevertheless, freedom of speech will continue to remain on the Internet, at least until an article is found where its context or the label of its hyperlinks do demonstrate an invitation to view the impugned site or an adoption of its contents (or the site’s traffic can be deduced).