SCC Judgement: Hyperlinking to Content Does Not Constitute Republication

Last Wednesday (October 19th, 2011), the Supreme Court of Canada released its judgement on Crookes v. Newton (2011 SCC 47). The case focused on whether or not liability existed when one post hyperlinks to allegedly defamatory material on the internet. The court’s decision was succinctly summarized by Justice Abella, who stated, “I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.” 

This decision is a landmark victory that accurately recognizes that simply posting a link to something on the internet does not mean that the hyperlinker is republishing the material. One of Justice Abella’s points was that, “Hyperlinks are, in essence, references”, and I believe this most clearly explains why the case was decided in the way that it was. Simply by placing a hyperlink in one’s blog post or article does not mean that the user has published that material or endorsed the viewpoints contained in the linked work. Justice Abella, in her reasons, noted the distinction between this simple hyperlinking and the possible situation where one might repeat the defamatory content that the hyperlinked material stated. In the second situation, this repetition could be considered “published” and a cause of action would be justified.

As Michael Geist points out, this is a major victory for the Internet and Internet users, as well as for the general freedom of expression. Just as the author of a book should not be held liable for simply referencing another work that may be considered defamatory, neither should a hyperlinking Internet user.

This decision by the Supreme Court of Canada recognizes the fact that without hyperlinking capabilities, much of the flow of information across the Internet, and therefore around the globe, would be severely compromised. Fear of reprisal would limit authors in how they write and the views they may wish to espouse on the Internet. Justice Abella notes, “Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning,” when speaking about the potential risk of allowing hyperlinking to be considered republication of materials.

This decision now also opens speculation as to how courts may deal with the issue of websites or groups who link to content on the internet which is infringing copyright. One of the pertinent classic examples of this is free web streaming for sports, television, or movies. There are numerous websites and blogs which do not themselves host infringing broadcasts, but simply embed a link to a video or stream. It is possible that the courts, given their decision in Crookes v. Newton, may be more likely to not view this linking or embedding as an infringement. This would mean that regulatory bodies or copyright holders who are trying to remove content from the internet would need to focus on websites which host video or files, as opposed to those which simply link to it, when trying to shut down and limit free accessibility to their product.

In sum, this decision by the Supreme Court of Canada is a major, and relatively ground-breaking one which recognizes internet user’s rights to freedom of expression. The Internet is often viewed as a place where users can spread information and facilitate its transfer much more easily. By recognizing that hyperlinking is not in itself republication, the Supreme Court of Canada pays deference to the modern and evolving nature of the law while maintaining freedom of expression. This decision will also likely influence other facets of the law when dealing with infringements on the Internet, such as video streaming.