A landmark case concerning hyperlink liability is the first in Canada to reach the Supreme Court and has broad implications for free expression online. Wayne Crookes, a former Green Party campaign manager and businessman, is suing writer Jon Newton for defamation based on a hyperlink to an online article written by Newton that contained allegedly libellous statements.
“For me, freedom of expression is the most fundamental of all rights and the net has opened that up in a way never seen before,” said Newton in an email interview by CJFE in late March 2011. The internet is a dynamic platform for communication that raises new questions about free expression, such as whether hyperlinking constitutes endorsement of the linked content. The case before the court has important implications for online communications and freedom of expression in cyberspace.
CJFE was part of a media coalition which intervened in the case which was heard in December 2010, along with other media, free expression and civil liberties organizations including PEN Canada, the Canadian Newspaper Association, the Canadian Publishers Council and The Professional Writers’ Union of Canada. The Canadian Civil Liberties Association and the Canadian Internet Policy and Public Policy also intervened separately to defend the hyperlink.
The Media Coalition argued that “hyperlinks are inherent to the internet, and to the ability of members of the Media Coalition to compete and fulfill their mandates in the internet age.” We argued that hyperlinking alone does not constitute an endorsement of the source’s content, and sought the dismissal of Crookes’ appeal to the Supreme Court in Ottawa.
"Entire information-sharing platforms such as Twitter and Facebook are built around the concept of the hyperlink and are used daily by millions of Canadians," said lawyer Richard Dearden in a legal brief from the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at University of Ottawa.
The Media Coalition also argued that to assume that a hyperlink constitutes publication will impose major restrictions on the media’s ability to work and to survive economically. Hyperlinks refer readers to other sources and while the link is static, content changes over time. Our concern is that a positive decision for Crookes would have a far-reaching chill on the media and would result in a major shift in how Canadians publish online.
The case before the Supreme Court was first heard in British Columbia in 2008. Crookes argued that Newton is a publisher of defamatory content by posting a link to it on his website p2pnet.net on July 18, 2006. The court dismissed the case in 2008, and Crookes appealed. But the Court of Appeal upheld the decision in 2009. The Court unanimously held that posting links does not automatically constitute publication, but disagreed on whether Newton had endorsed the views of the linked articles.
“The  decision leaves many questions unanswered about the circumstances in which a creator of a hyperlink will be found liable for defamatory materials found at a linked site,” wrote Sona Dhawan in The Court, a blog run by student editors of Osgoode Law School.
Newton’s lawyers acknowledged that internet authors may be liable if they explicitly endorse a linked article but in this case, the writer did not comment on the nature of the linked content.
When asked to comment about his case, Newton referred CJFE to a statement made by Supreme Court Justice Louise Charron during the hearing, “[She] pulled it all together when she stated, ‘It seems to me that if we accept the position you're putting forth [Crookes' lawyer], then no one should ever hyperlink. Maybe I'm a chicken, but I would not dare create a hyperlink because there might be some defamatory material, and I'll be stuck defending myself in court, and I cannot afford it. We're sentencing the hyperlink to death, it seems to me.’”
On December 7, 2010, the Supreme Court reserved judgment on the case. CJFE expects a decision later this year.
Meanwhile, Newton says that he intends to continue his work with p2pnet.net, “I still get up every morning at around 3:00am and cover as much as I can on subjects which interest me, particularly if they have anything to do with freedom of expression.” Readers of p2pnet.net will note that despite being scheduled for open heart surgery on April 1, 2011, Newton does indeed continue to write.
Factum of the Media Coalition
Supreme Court Docket: Wayne Crookes, et al. v. Jon Newton
Crookes v. Newton, 2009 BCCA 392 (CanLII)
Crookes v. Wikimedia Foundation Inc., 2008 BCSC 1424 (CanLII)