Defamation by hyperlink.

• Author: Bowal, Peter
• Position: Special Report: Developments in Internet Law

Introduction

The Internet is often called a "lawless frontier" and for good reason. The law is not good at regulating even simple forms of technology because, among other reasons, it operates on the basis of delimited territorial jurisdiction using conceptual frameworks and doctrines developed in an era of physical things and slow, deliberate communication. The ubiquitous global reach and anonymity of the Internet present extraordinary challenges to its legal regulation.

The Supreme Court of Canada's 2011 decision in the case of Crookes v. Newton is a prime example of how individual rights as ephemeral as reputation must be balanced with other freedoms, such as expression, in this powerful, evolving medium of the Internet.

Facts

Website owner Jon Newton posted an article on his site that contained two hyperlinks to allegedly defamatory articles regarding Wayne Crookes, a British Columbia businessman. Newton did not convey any obvious or independent support for the content in the articles hyperlinked. Crookes and his lawyer contacted Newton to ask him to remove the hyperlinks, but Newton refused to take them down. Crookes sued, claiming that by posting the hyperlinks and not removing them after receiving notification that they were defamatory, Newton was responsible for publishing defamatory material and was therefore was liable to Crookes in damages.

Hyperlinks and Defamation

Hyperlinks are images or words that, when clicked, take one to another site. Deep hyperlinks direct a website user straight to the destination page, while surface or shallow hyperlinks only bring the user to a different website's homepage. (1) Newton's article contained both a shallow hyperlink which brought a web user to a homepage of a website called OpenPolitics, and a deep hyperlink which sent users directly to an article about Crookes on the website www.USGovernetics.com.

A simple--yet indispensible--feature of the Internet, the hyperlink is something web users take for granted today, despite a litigious history. In 2000, British Telecom sued one of the first Internet Service Providers (ISPs) for patent infringement. BT claimed one of its decades-old patents embraced hyperlinking and sought compensation for the ISP's use of these hyperlinks. The court eventually concluded the ISP's use of hyperlinks did not infringe upon BT's patent. (2)

Hyperlinks originated with the Internet but defamation as crime and a tort has a much longer record. In Canadian common law...