Canada: The publication of hypertext links to web pages containing defamatory material does not, per se, constitute defamation

The Supreme Court of Canada gave the above-described ruling on October 19, 2011 in the case Wayne Crookes and West Coast Title Search Ltd. which concerned an action brought by the plaintiff Crookes who claimed that the defendant had committed the tort of defamation by providing hypertext links to third party websites containing defamatory material.

The Court had to deal with the difficult question of how to reconcile the right to freedom of expression with the right not to have one’s reputation tarnished and of whether the mere publication of a hypertext link to material memorized on a third party website could give rise to civil liability for defamation.

The Court reached the conclusion that no tort had been committed by the defendant in the case at hand.

The findings of Judge Abella were of particular interest.

The latter held that the right to freedom of expression and democracy in general would be adversely affected in the event that online content providers were held to be civilly liable not only for the publication of defamatory material but also for the publication of defamatory material by third parties in relation to which they had merely provided a hypertext link.

Judge Abella also analyzed the nature of direct links, considering them to be not so much publications as bibliographic references.

In other words, the Court held that content providers do not commit defamation in those situations in which a hypertext link is provided to contents published on another website since the defendant, in such situation, cannot be considered to have published defamatory material.

A different conclusion would, instead, be reached in the event that the content provider not only published a hypertext link but also reproduced (in whole or in part) the defamatory material in question.

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