On September 15, 2009, almost a year after the appeal was heard, the British Columbia Court of Appeal handed down the judgment in Crookes v. Newton. For those who have followed this case, the decision is a victory for free speech and the right to link (also referred to as hyperlink) to material that may be defamatory. But the victory is not without a significant word of caution – not all linking may be innocent and consequence-free in the eyes of the law.

Mr. Newton wrote and posted an article on a website he operates in which he included links to both an article critical of Mr. Crookes hosted and written by someone else, and to a website which contained several similar articles and other unrelated content. Mr. Crookes sued Mr. Newton, arguing that by posting the links and refusing to remove them when asked, Mr. Newton had defamed him and was just as liable as the authors of the actual articles. At a summary trial, the trial judge dismissed Mr. Crookes’ lawsuit, finding that the mere act of linking did not amount to publication of defamatory material and thus could not be defamation. The Court of Appeal, split 2:1, upheld the trial judge’s decision.

Traditionally, to be found liable for defamation, a person must have published material that is defamatory, i.e., damaging to someone’s reputation. In the legal context, publication is communication of the defamatory material to any person other than the one defamed, and consists of two requisite parts: communication of the material, and receipt of the material by a person. Thus, there is no publication if no person (or at least nobody within the court’s jurisdiction) has actually received and read or viewed the offending material.

In applying this traditional test to the online context in this case, the court unanimously agreed that publication cannot be presumed merely because an article (with or without an offending link) is published on the internet. The court rejected Mr. Crookes’ argument that such presumption should be extended from printed newspapers to the online world, concluding that wide accessibility of online content says nothing about who, if anyone, actually accessed this content.

Second, the majority of the court found that mere linking to defamatory material does not, by itself, amount to publication of that material by the person doing the linking. Such action is akin to footnoting, and does not lead to liability because:

… there is a barrier between the accessed article and the hyperlinked site [or article] that must be bridged, not by the publisher, but by the reader.

However, linking to defamatory material may be found to publication of that material when it is done in the context of inviting or encouraging the reader to view the material or adopting all or part of its contents. For example:

… a statement to the effect “N is described at [hyper link]” may itself incorporate libel so as to be defamatory.

Here, the minority found that in the context of Mr. Newton’s article there was encouragement or invitation to the readers to click on the link and read the articles about Mr. Crookes. The majority disagreed, finding that the words chosen by Mr. Newton, reproduced below, fell short of “a statement of approbation, or adoption, and appear … to be most comparable to a footnote for a reader, or a card index in the library”:

Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes.

The conclusion? Link away, but choose your words carefully.