SCC hyperlink decision has implications for educators

The blogosphere has had two weeks now to digest the recent ruling of the Supreme Court of Canada in Crookes v. Newton (CanLII), where the high court ruled that simply the act of hyperlinking to defamatory material elsewhere on the internet does not alone constitute defamation.  The decision upholds the rulings of two lower courts, so the outcome is not necessarily a surprise; however, the details of the decision have broad implications for anyone who posts commentary online. 

Educators, in particular, should pay attention, given that teaching is increasingly shifting to become an online activity.  More professors and teachers are blogging than ever before, and students are demanding more and more that materials be made available through the web.

Hyperlinking (Wikipedia) is an active connection or reference to another website through a sensitive word or phrase, allowing the reader to cut directly to additional information relevant to what they are currently reading.  A hyperlink can be “shallow” – i.e. linking to page with relevant articles, like a newspaper’s homepage – or “deep” – i.e. linking directly to a relevant article. 

The relationship of hyperlinking to defamation is timely because the internet, or more significantly the way we use the internet, has created an environment where defamation is easy, simple and common.  In the past, if you wanted to defame an enemy, you generally had to use or be a member of the media.  But current communication technologies provide nearly everyone with access to the tools of defamation.

Here is a summary (The Canadian Encyclopedia) of the ingredients of defamation from Lewis N. Klar, an expert in Canadian tort law:

In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person.  Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished.  This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.

The specific issue in Crookes was the third item in this paragraph, namely whether the plaintiff had established that the defendant had conveyed defamatory meaning to a single third party that had received it.   If nobody hears or reads it, then it’s not defamation.

The facts in this case are fairly straightforward: Crookes claimed that Newton had defamed him by having hyperlinks on Newton’s website to other websites containing allegedly defamatory material.  On first blush, Crookes’ argument makes sense.  If you aren’t allowed to call someone bad names, you shouldn’t be allowed to direct traffic to another site where those names are being tossed around.  But, at the same time, you should be allowed to present a portal to possibly offensive material without taking ownership of everything that appears there.  Freedom of expression vs. the right to protect one’s reputation.  The stuff of interesting judgments.

Justice Abella, who wrote the majority decision in Crookes, had several important comments:

• The law should not create a presumption of liability for all “hyperlinkers”.  That would seriously curb the free exchange of information.
• A hyperlink is generally used more as a reference than as a way to reproduce text conveying an idea – that is, it’s more like a footnote than an excerpt.  It establishes a door and does not demonstrate any content set out on the other side.  A hyperlink, then, is “content neutral”. 
• A hyperlinker can select the destination of the hyperlink but has no control over the content, which may vary from time to time.
• Consequently, a hyperlinker only publishes hyperlinked material when they reproduce the defamatory content in some way.

The high court ruled that since all Newton did was hyperlink to allegedly defamatory material, his actions were not sufficient to establish “publication”.  

Two other judgments were released by other members of the court, each of which agreed with Justice Abella’s conclusion but emphasized different concerns and arguments.  For example, Justices McLachlin and Fish added that using a hyperlink as a reference should not constitute defamation, but where a secondary author endorses or recommends defamatory material through a hyperlink, well, that’s a different story.  Justice Deschamps expressed concern that Justice Abella’s decision provided too great an exclusion to the rule of publication, and remarked that going after the originator and not the reporter (i.e. the hyperlinker) may be a challenge given the anonymity and global nature of the internet. 

The lesson?  Don’t think you can get away doing indirectly that would get you stung for doing directly.  Trashing reputations is generally not a protected exercise of free expression.  If you are going to play with fire by hyperlinking to potentially toxic material, use the hyperlink as a footnote without taking ownership over the material or sharing too much of it.

Here (The Court) is a link to additional analysis on the judgment.