Linking to defamatory material is not the same as publishing it, says Canadian court

Mr Justice Kelleher in the Supreme Court of British Columbia in Canada ruled that a hyperlink was like a footnote in that it led to material produced by a third party which the reader did not have to follow. The publisher of the link could not be liable for someone else's content, he said.

"Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided," he said.

Green Party activist Wayne Crookes is taking legal action against the publishers of four articles on the internet which he says represent a smear campaign against him. He is taking five court cases against Yahoo!, Google, Wikipedia and others.

He also took an action against Jon Newton, who publishes the P2PNet.net website. When Crookes took his legal action against the other publishers, Newton published a commentary on the implications of the action for those who run online forums.

Newton's postings included links to two of the sites which had published the articles in question and to the articles themselves. He posted no comments about Crookes or his integrity nor any excerpts from the articles.

"[Crookes does] not allege that Mr. Newton wrote or posted any defamatory words [but] that posting hyperlinks to websites containing defamatory material constitutes publication of the defamatory words in the latter websites," said the Court's ruling.

Mr Justice Kelleher said that Newton should not be responsible for the material that lay at the end of a link that was published without further comment.

"I agree with the defendant that footnotes in an article are an apt analogy," he said. "Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed."

It was crucial that Newton had not repeated the allegations in the allegedly defamatory articles, or commented on their worth, the Court said.

"The defendant did not publish any defamatory content on the p2pnet website itself," said Mr Justice Kelleher's ruling. "The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles. In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content."

Before reaching this conclusion, the Court had also decided another contentious issue, which was whether or not the mere existence of Newton's postings to P2PNet.net counted as publication.

"[Crookes's] case is that publication is presumed," said the judge's ruling. "Publication is presumed where statements are made in books or newspapers or where they are broadcast to the general public:"

Crookes had argued that the mere fact of the material being online and available was enough to count as publication. Newton said that for his postings to count as publication there would have to be proof that people had read it and had followed his links to the articles containing allegedly defamatory content.

"The issue in this case is … if anyone followed the hyperlinks posted on the p2pnet site," said Mr Justice Kelleher. "Without proof that persons other than the plaintiff visited the defendant's website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication."

Mr Justice Kelleher said, though, that it was possible for hyperlinkers to bear responsibility for the material they linked to.

"It is not my decision that hyperlinking can never make a person liable for the contents of the remote site," he said. "For example, if Mr Newton had written 'the truth about Wayne Crookes is found here' and 'here' is hyperlinked to the specific defamatory words, this might lead to a different conclusion."

The law on linking to defamatory content has never been tested in the UK, said Struan Robertson, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM.

"We tend to look to a case from the 19th century for guidance on liability for linking to defamatory material," said Robertson. The case of Hird v. Wood involved a man sitting beside a placard containing defamatory remarks and drawing the attention of passers by to it. "There was no direct evidence of who provided the placard but the defendant's action of pointing at it led to a finding of liability," he said. "It's possible that a British court would follow the same reasoning today."

Earlier this year a French court held sites responsible for linking to material that illegally invaded the privacy of Olivier Martinez, Kylie Minogue's ex-boyfriend.

"By sending the reader to the website celebrite-stars.blogspot.com the defender had effectively made an editorial decision," the court ruling said, in a rough translation from French. "The link in effect is a deliberate decision on the part of the defending organisation, contributing to the spread of illicit information, thus making him responsible as an editor of such information."