You may now exhale, Canadian journalists, bloggers, and Twitter users. Canada's Supreme Court has unanimously decided that posting a hyperlink to an allegedly defamatory article does not constitute defamation itself.
"I would conclude that a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers," opined Supreme Court Justice Rosalie Silberman Abella, speaking for the panel reviewing the matter of Crookes versus Newton.
The court's decision adds that "only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be 'published' by the hyperlinker."
It's actually embedded
The case in question involves Jon Newton, who runs a site called p2pnet that focuses on file-sharing-related matters. Five years ago he wrote an essay about a dispute involving local Vancouver businessman Wayne Crookes, who sued a former associate for publishing articles online that Crookes found defamatory.
Newton's online prose included hyperlinks to the allegedly harmful content. Crookes insisted that Newton remove them, and when the latter refused to do so, Crookes sued Newton as well. Arguing before the trial judge and then an appellate court, Crookes' attorneys repeatedly disputed the commonly held notion that hyperlinks can be understood as footnotes—pointing to but not publishing the material in question.
"The creation of a hyperlink actually embeds the referred to material in the primary article," Crookes' claimed in his appeal before the Supreme Court. "The utilization of a hyperlink, if it is analogous at all to the footnote in written material or a card index in a library, would be analogous only if the material accessed by the hyperlink were stapled to the written material or card index."
