Defamation – Liability for Linking

The Supreme Court of Canada has granted leave to appeal to the plaintiff in the British Columbia case of Crookes v Newton 2009 BCCA 392.

The Court blog has a summary of the facts and of the appeal judgment.

Basically, the question is whether someone who posts a link to a defamatory publication has him/her/itself published a defamation. The BCCA held 2:1 that in some circumstances the link could be defamatory — but only if in context the poster of the link called particular attention to it and indicated agreement. The majority held (as had the trial court) that the defendant in this case had not done so. (The link was part of a blog entry about the plaintiff’s efforts to suppress someone else’s stories about him.)

The minority (Prowse JA) held that the defendant had done enough for his posting of the link to be defamatory in itself.

My tentative view is that Prowse JA is WAY too strict, and that linking would be extremely hazardous, whether or not one had any capacity to know whether the document to which one linked was defamatory.

Views, in anticipation of the SCC’s decision in a year or so?

Interesting, by the way, that the SCC gave leave with costs in the cause. Often in test cases where the parties have unequal resources, the respondent is not put at risk of costs even if the appeal succeeds. No such mercy for the blogger here. Does that make sense, or does it foreshadow a court that is unsympathetic to the blogger/linker on the merits?

Comments

  1. I think the court’s decision in this case seems very reasonable. One can imagine many scenarios in which a mere hyperlink *could* be itself defamatory or a republication depending on the context of that link and other content on the page.

    I think the real problem for bloggers will lie in the details. What will it take to withstand summary judgment if a blogger is sued for posting a defamatory hyperlink? How much latitude will plaintiffs have in discovery? Even if bloggers inevitably prevail in most cases, the mere risk of costly litigation may have an enormous chilling effect.

  2. I agree with Lawnix – that’s why Justice Prowse’s dissent is unsettling. On the facts of this case, the defendant had just referred to a debate, without taking sides. She came down hard on him on every point.

    I suspect that if a blogger (or anyone else) said “X is a foul crook, and should be locked up, see evidence here: http://www.yellowjournal.com“, that would be defamatory, because the blogger inserts his/her own view. But there have to be clear limits. The challenge of the chilling effect of litigation is an important one.

  3. I would argue that linking is not enough. To say it’s over here, whether you agree or not, is not to the point of defamation. The internet allows a lot, but should not be put on a more strict set than other mediums.