Wayne Crookes v. West Coast Title Search Ltd., 2011 SCC 47

SUPREME COURT OF CANADA Citation: Crookes v. Newton, 2011 SCC 47 , [2011] 3 S.C.R. 269 Date: 20111019 Docket: 33412 Between: Wayne Crookes and West Coast Title Search Ltd.

Appellants and Jon Newton Respondent - and - Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, NetCoalition, British Columbia Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, Writers’ Union of Canada, Professional Writers Association of Canada, PEN Canada and Canadian Publishers’ Council Interveners Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 45) Joint Concurring Reasons: (paras. 46 to 53) Reasons Concurring in the Result: (paras. 54 to 130) Abella J. (Binnie, LeBel, Charron, Rothstein and Cromwell JJ. concurring) McLachlin C.J. and Fish J. Deschamps J.

Crookes v. Newton , 2011 SCC 47, [2011] 3 S.C.R. 269 Wayne Crookes and West Coast Title Search Ltd. Appellants v. Jon Newton Respondent and Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, NetCoalition, British Columbia Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, Writers’ Union of Canada, Professional Writers Association of Canada, PEN Canada and Canadian Publishers’ Council Interveners Indexed as: Crookes v.

Newton 2011 SCC 47 File No.: 33412. 2010: December 7; 2011: October 19. Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for british columbia Torts — Libel and slander — Publication — Internet — Defendant creating hyperlinks to allegedly defamatory articles — Whether hyperlinking, in and of itself, constitutes publication. N owns and operates a website in British Columbia containing commentary about various issues, including free speech and the Internet.

One of the articles he posted on it contained shallow and deep hyperlinks to other websites, which in turn contained information about C. C sued N on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, N was publishing the defamatory information. At trial, the judge concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words. The judge agreed that hyperlinks were analogous to footnotes since they only refer to another source without repeating it.

Since there was no repetition, there was no publication. Furthermore, in the absence of evidence that anyone other than C used the links and read the words to which they linked, there could not be a finding of publication. A majority of the Court of Appeal upheld the decision, finding that while some words in an

article may suggest that a particular hyperlink is an encouragement or invitation to view the impugned site, there was no such encouragement or invitation in this case. In addition, the number of “hits” on the

article itself was an insufficient basis for drawing an inference in this case that a third party had read the defamatory words. The dissenting judge held that there was publication. The fact that N’s website had been viewed 1,788 times made it unlikely that no one had followed the hyperlinks and read the impugned article. Furthermore, the context of the

article suggested that readers were encouraged or invited to click on the links. Held : The appeal should be dismissed. Per Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.: To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant.

Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression. Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content.

The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary

article to which he or she has linked. A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. 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. Here, nothing on N’s page is itself alleged to be defamatory. Since the use of a hyperlink cannot, by itself, amount to

publication even if the hyperlink is followed and the defamatory content is accessed, N has not published the defamatory content and C’saction cannot succeed. Per McLachlin C.J. and Fish J.: The reasons of the majority are agreed with substantially. However, a hyperlink shouldconstitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specificcontent it links to. A mere general reference to a Web site is not enough to find publication.

Per Deschamps J.: Excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issuesraised by the Internet. This blanket exclusion exaggerates the difference between references and other acts of publication, and treats allreferences, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatoryinformation available to third parties and, consequently, in the harm they can cause to people’s reputations. In the common law of defamation, publication has two components:

(1) an act that makes the defamatory informationavailable to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it isunderstood. In the context of Internet hyperlinks, a simple reference, absent evidence that someone actually viewed and understood thedefamatory information to which it directs third parties, is not publication of that content. In order to satisfy the requirements of the firstcomponent of publication, the plaintiff must establish, on a balance of probabilities, that the hyperlinker performed a deliberate act thatmade defamatory information readily available to a third party in a comprehensible form.

An act is deliberate if the defendant playedmore than a passive instrumental role in making the information available. In determining whether hyperlinked information is readilyavailable, a court should consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is ashallow or a deep link, and whether the linked information is available to the general public (as opposed to being restricted). Any matterthat has a bearing on the ease with which the referenced information could be accessed will be relevant to the inquiry.

For an action in defamation to succeed, the plaintiff must also satisfy the requirements of the second component ofpublication on a balance of probabilities, namely that a third party received and understood the defamatory information.

Thisrequirement can be satisfied either by adducing direct evidence or by asking the court to draw an inference based on, notably, whetherthe link was user-activated or automatic; whether it was a deep or a shallow link; whether the page contained more than one hyperlinkand, if so, where the impugned link was located in relation to others; the context in which the link was presented to users; the number ofhits on the page containing the hyperlink; the number of hits on the page containing the linked information (both before and after thepage containing the link was posted); whether access to the Web sites in question was general or restricted; whether changes were madeto the linked information and, if so, how they correlate with the number of hits on the page containing that information; and evidenceconcerning the behaviour of Internet users.

Once the plaintiff establishes prima facie liability for defamation, the defendant can invokeany available defences. Here, N acted as more than a mere conduit in making the hyperlinked information available. His action was deliberate. However, having regard to the totality of the circumstances, it cannot be inferred that the first, shallow hyperlink made the defamatorycontent readily available. The various articles were not placed on the other site’s home page and they had separate addresses.

The factthat the reader had to take further action in order to find the defamatory material constituted a meaningful barrier to the receipt, by a thirdparty, of the linked information. The second, deep hyperlink, however, did make the content readily available. All the reader had to doto gain access to the

article was to click on the link, which does not constitute a barrier to the availability of the material. Thus, C hassatisfied the requirements of the first component of publication on a balance of probabilities where this link is concerned. However, thenature of N’s article, the way the various links were presented and the number of hits on the

article do not support an inference that theallegedly defamatory information was brought to the knowledge of some third person. The defamation action with respect to either ofthe impugned hyperlinks cannot succeed. Cases Cited By Abella J. Applied: McNichol v. Grandy, (SCC), [1931] S.C.R. 696; approved: Carter v. B.C. Federation of FosterParents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1; referred to: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Gaskin v.Retail Credit Co., (SCC), [1965] S.C.R. 297; Stanley v. Shaw, 2006 BCCA 467, 231 B.C.A.C. 186; Hiltz and SeamoneCo. v.

Nova Scotia (Attorney General) (1997), (NS SC), 164 N.S.R. (2d) 161, aff’d in part (1999), 1999 NSCA 22, 173 N.S.R. (2d) 341; “Truth” (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997; Lambert v. Thomson, (ON CA),[1937] O.R. 341; Pullman v. Walter Hill & Co., [1891] 1 Q.B. 524; R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207; Hird v. Wood(1894), 38 S.J. 234; Buchanan v. Jennings, [2004] UKPC 36, [2005] 1 A.C. 115; Polson v. Davis, 635 F.Supp. 1130 (1986), aff’d 895F.2d 705 (1990); Crain v. Lightner, 364 S.E.2d 778 (1987); Spike v.

Golding (1895), 27 N.S.R. 370; Society of Composers, Authors andMusic Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Vizetelly v. Mudie’s SelectLibrary, Ltd., [1900] 2 Q.B. 170; Sun Life Assurance Co. of Canada v. W. H. Smith and Son Ltd. (1934), 150 L.T. 211; Bunt v. Tilley,[2006] EWHC 407, [2006] 3 All E.R. 336; Metropolitan International Schools Ltd. v. Designtechnica Corpn., [2009] EWHC 1765,[2011] 1 W.L.R. 1743; Klein v. Biben, 296 N.Y. 638 (1946); MacFadden v. Anthony, 117 N.Y.S.2d 520 (1952); Zeran v. AmericaOnline, Inc., 129 F.3d 327 (1997); Barrett v.

Rosenthal, 146 P.3d 510 (2006); Fair Housing Council of San Fernando Valley v.Roommates.Com, LLC, 521 F.3d 1157 (2008); Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801;Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130; WIC Radio Ltd. v. Simpson, 2008 SCC 40,[2008] 2 S.C.R. 420; Reno v. American Civil Liberties Union, 521 U.S. 844 (1997); Barrick Gold Corp. v. Lopehandia (2004), (ON CA), 71 O.R. (3d) 416; Botiuk v. Toronto Free Press Publications Ltd., (SCC), [1995] 3 S.C.R. 3;Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116; Butler v.

Southam Inc., 2001 NSCA 121, 197 N.S.R. (2d) 97; BouMalhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214. By McLachlin C.J. and Fish J.

Referred to: Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130. By Deschamps J. Applied: McNichol v. Grandy, (SCC), [1931] S.C.R. 696; referred to: WIC Radio Ltd. v. Simpson, 2008SCC 40, [2008] 2 S.C.R. 420; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Gaskin v. Retail Credit Co., (SCC), [1965] S.C.R. 297; Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130; Society ofComposers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427;Gambrill v. Schooley, 93 Md. 48 (1901); Dell Computer Corp. v.

Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801; Carterv. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1; MacFadden v. Anthony, 117 N.Y.S.2d 520 (1952);Klein v. Biben, 296 N.Y. 638 (1946); Lambert v. Thomson, (ON CA), [1937] O.R. 341; Botiuk v. Toronto Free PressPublications Ltd., (SCC), [1995] 3 S.C.R. 3; Day v. Bream (1837), 2 M. & Rob. 54, 174 E.R. 212; R. v. Clerk (1728), 1Barn. K.B. 304, 94 E.R. 207; Godfrey v. Demon Internet Ltd., [1999] 4 All E.R. 342; Dow Jones & Co. v. Gutnick, [2002] HCA 56, 210C.L.R. 575; Stanley v. Shaw, 2006 BCCA 467, 231 B.C.A.C. 186; Smith v.

Matsqui (Dist.) (1986), (BC SC), 4B.C.L.R. (2d) 342; Wilson v. Meyer, 126 P.3d 276 (2005); Pond v. General Electric Co., 256 F.2d 824 (1958); Scott v. Hull, 259 N.E.2d160 (1970); Byrne v. Deane, [1937] 1 K.B. 818; Hellar v. Bianco, 244 P.2d 757 (1952); Tacket v. General Motors Corp., 836 F.2d 1042(1987); Urbanchich v. Drummoyne Municipal Council (1991), Aust. Torts Rep. ¶81-127; Frawley v. State of New South Wales, [2007]NSWSC 1379 (AustLII); Underhill v. Corser, [2010] EWHC 1195 (BAILII); Bunt v. Tilley, [2006] EWHC 407, [2006] 3 All E.R. 336;Metropolitan International Schools Ltd. v.

Designtechnica Corpn., [2009] EWHC 1765, [2011] 1 W.L.R. 1743; Zeran v. AmericaOnline, Inc., 129 F.3d 327 (1997); Barrett v. Rosenthal, 146 P.3d 510 (2006); Fair Housing Council of San Fernando Valley v.Roommates.Com, LLC, 521 F.3d 1157 (2008); Islam Expo Ltd. v. The Spectator

(1828) Ltd., [2010] EWHC 2011 (BAILII); Jameel v.Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359. Statutes and Regulations Cited Communications Decency Act of 1996, 47 U.S.C. §230 (1996). Libel and Slander Act, R.S.B.C. 1996, c. 263, s. 2. Supreme Court Rules, B.C. Reg. 221/90, r. 18A. Authors Cited Balkin, Jack M. “The Future of Free Expression in a Digital Age” (2009), 36 Pepp. L. Rev. 427. Baynham, Bryan G., and Daniel J.

Reid. “The Modern-Day Soapbox: Defamation in the Age of the Internet”, in Defamation Law: Materials prepared for the Continuing Legal Education seminar, Defamation Law 2010. Vancouver: Continuing Legal EducationSociety of British Columbia, 2010. Boivin, Denis W. “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1996-1997), 22Queen’s L.J. 229. Brown, Raymond E. Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, vols. 1 and 2, 2nd ed. Toronto: Carswell, 1994 (loose-leaf updated 2011, release 3). Collins, Matthew.

The Law of Defamation and the Internet, 3rd ed. New York: Oxford University Press, 2010. Dalal, Anjali. “Protecting Hyperlinks and Preserving First Amendment Values on the Internet” (2011), 13 U. Pa. J. Const. L. 1017. Danay, Robert. “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation”(2010), 56 McGill L.J. 1. Gatley on Libel and Slander, 11th ed. by Patrick Milmo and W. V. H. Rogers. London: Sweet & Maxwell, 2008.

Iacobucci, Frank. “Recent Developments Concerning Freedom of Speech and Privacy in the Context of Global CommunicationsTechnology” (1999), 48 U.N.B.L.J. 189. Klar, Lewis N. Tort Law, 4th ed. Toronto: Thomson Carswell, 2008. Lidsky, Lyrissa Barnett. “Silencing John Doe: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855. Linden, Allen M., and Bruce Feldthusen. Canadian Tort Law, 8th ed. Markham, Ont.: LexisNexis Butterworths, 2006. Lindsay, David. Liability for the Publication of Defamatory Material via the Internet, Research Paper No. 10.

Melbourne: Universityof Melbourne, Centre for Media, Communications and Information Technology Law, 2000. Osborne, Philip H. The Law of Torts, 4th ed. Toronto: Irwin Law, 2011. Ross, June. “The Common Law of Defamation Fails to Enter the Age of the Charter” (1996), 35 Alta. L. Rev. 117. Sableman, Mark. “Link Law Revisited: Internet Linking Law at Five Years” (2001), 16 Berkeley Tech. L.J. 1273. Streeter, Jeremy. “The ‘Deception Exception’: A New Approach to

Section 2(

b) Values and Its Impact on Defamation Law” (2003), 61U.T. Fac. L. Rev. 79.

APPEAL from a judgment of the British Columbia Court of Appeal ( Prowse, Saunders and Bauman JJ.A.), 2009 BCCA 392 , 96 B.C.L.R. (4th) 315 , 311 D.L.R. (4th) 647 , 276 B.C.A.C. 105 , 468 W.A.C. 105 , 69 C.C.L.T. (3d) 66 , [2010] 2 W.W.R. 271 , [2009] B.C.J. No. 1832 (QL) , 2009 CarswellBC 2401 , affirming a decision of Kelleher J., 2008 BCSC 1424 , 88 B.C.L.R. (4th) 395 , 61 C.C.L.T. (3d) 148 , [2009] 1 W.W.R. 482 , [2008] B.C.J. No. 2012 (QL) , 2008 CarswellBC 2237 . Appeal dismissed. Donald J. Jordan , Q.C. , and Robert A. Kasting , for the appellants. Daniel W. Burnett and Harvey S.

Delaney , for the respondent. Wendy Matheson , Andrew Bernstein and Molly Reynolds , for the intervener the Canadian Civil Liberties Association. Richard G. Dearden and Wendy J. Wagner , for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. William C. McDowell , Marguerite F. Ethier and Naomi D. Loewith , for the intervener NetCoalition. Roy W. Millen , for the intervener the British Columbia Civil Liberties Association. Robert S. Anderson , Q.C. , and Ludmila B.

Herbst , for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, the Writers’ Union of Canada, the Professional Writers Association of Canada, PEN Canada and the Canadian Publishers’ Council.

The judgment of Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ. was delivered by [ 1 ] Abella J. — To succeed in an action for defamation, the plaintiff must prove on a balance of probabilities that the defamatory words were published, that is, that they were “communicated to at least one person other than the plaintiff” ( Grant v. Torstar Corp. , 2009 SCC 61 , [2009] 3 S.C.R. 640 , at para. 28 ). [ 2 ] A hyperlink is a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information.

Clicking on the hyperlink connects the reader to that information. [ 3 ] The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material. I. Background [ 4 ] Wayne Crookes is the President and sole shareholder of West Coast Title Search Ltd.

He brought a series of lawsuits against those he claimed were responsible for allegedly defamatory articles published on a number of websites, arguing that the articles represented a “smear campaign” against him and other members of the Green Party of Canada. [ 5 ] Jon Newton owns and operates a website in British Columbia containing commentary about various issues, including free speech and the Internet. One of the articles he posted on it was called “Free Speech in Canada”. The

article contained hyperlinks to other websites, which in turn contained information about Mr. Crookes. [ 6 ] Mr. Crookes sued Mr. Newton on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, Mr. Newton was publishing the defamatory information. One was a “shallow” hyperlink, which takes the reader to a webpage where articles are posted, and the other was a “deep” hyperlink, which takes the reader directly to an

article (Matthew Collins, The Law of Defamation and the Internet (3rd ed. 2010), at para. 2.43). Both shallow and deep hyperlinks require the reader to click on the link in order to be taken to the content. [ 7 ] The two hyperlinks, identified by underlining, were in the following excerpt from Mr. Newton’s posting: Under new developments, . . . I’ve just met Michael Pilling, who runs OpenPolitics.ca . Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes .

We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future. [A.R., at p. 125] [ 8 ] OpenPolitics.ca was hyperlinked to the Open Politics website where several articles were posted and were said by Mr. Crookes to be defamatory. Wayne Crookes was hyperlinked to an allegedly defamatory

article called “Wayne Crookes”, published anonymously on the website www.USGovernetics.com. [ 9 ] Mr. Crookes wrote to Mr. Newton asking him to remove the two hyperlinks. When he got no response, Mr. Crookes’ lawyer wrote to Mr. Newton, repeating the request. Mr. Newton refused to remove the hyperlinks. [ 10 ] Mr. Crookes sued Mr. Newton for defamation in British Columbia. He did not allege that anything on Mr. Newton’s webpage was itself defamatory. Rather, he argued that by creating hyperlinks to the allegedly defamatory articles, or by refusing to remove those hyperlinks when told of their defamatory character, Mr. Newton himself became a publisher of the articles. By then, Mr. Newton’s

article had been “viewed” 1,788 times. There is no information in the record about whether, or how many times, the hyperlinks themselves had been clicked on or followed. [ 11 ] At trial, Kelleher J. concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words ( 2008 BCSC 1424 , 88 B.C.L.R. (4th) 395 ). He agreed with Mr. Newton’s submission that hyperlinks were analogous to footnotes since they only refer to another source without repeating it. Since

there was no repetition, there was no publication. And in the absence of evidence that anyone other than Mr. Crookes used the links andread the words to which they linked, there could not be a finding of publication. [12] In the Court of Appeal, Saunders J.A., with whom Bauman J.A. concurred, held that the appeal should be dismissed(2009 BCCA 392, 96 B.C.L.R. (4th) 315). Agreeing with the trial judge, she found that reference to an

article containing defamatorycomments without repetition of the comments themselves is analogous to a footnote or a card index in a library and should not be foundto constitute republication of the defamation. While some words in an

article may suggest that a particular hyperlink is an“encouragement or invitation” to view the impugned site, she saw no such encouragement or invitation in this case. She also refused toaccept that the number of “hits” on the

article itself was a sufficient basis for drawing an inference that a third party had read thedefamatory words (paras. 89 and 92). [13] Prowse J.A. dissented. While she agreed that the mere fact that Mr. Newton had created hyperlinks to the impugnedsites did not make him a publisher of the material found at the hyperlinked sites, she did not accept the “footnote analogy” as beingdispositive of the publication issue (para. 60). In her view, the fact that Mr. Newton’s website had been viewed 1,788 times made it“unlikely” that no one had followed the hyperlinks and read the impugned articles (para. 70).

Moreover, the context of Mr. Newton’sarticle suggests that readers were in fact encouraged or invited to click on the links. In her view, therefore, there was publication. [14] In British Columbia, pursuant to the Libel and Slander Act, R.S.B.C. 1996, c. 263, publication is deemed to haveoccurred in certain situations. There is, however, no such presumption in relation to material published on the Internet.

Nonetheless, Mr.Crookes argued that when a hyperlink has been inserted on a webpage, it should be presumed that the content to which the hyperlinkconnects has been brought to the knowledge of a third party and has therefore been published. For the reasons that follow, I would notonly reject such a presumption, I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to whichit refers. [15] Mr.

Crookes also complains that the Court of Appeal imposed too high a burden of proof, essentially requiring directevidence that a third party followed the hyperlink to the allegedly defamatory content. This, he claims, deprives him of the ability to relyon an inference that at least one person followed one of the impugned hyperlinks to the allegedly defamatory content, and that thedefamatory meaning has therefore been published. (See Gaskin v. Retail Credit Co., (SCC), [1965] S.C.R. 297.) In viewof my conclusion that hyperlinking is not, in and of itself, publication, there is no need to address this argument. II.

Analysis [16] To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act,conveyed defamatory meaning to a single third party who has received it (McNichol v. Grandy, (SCC), [1931] S.C.R.696, at p. 699). Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content toreach the third party are irrelevant: There are no limitations on the manner in which defamatory matter may be published.

Any act which has the effect oftransferring the defamatory information to a third person constitutes a publication. (Stanley v. Shaw, 2006 BCCA 467, 231 B.C.A.C. 186, at para. 5, citing Raymond E. Brown, The Law of Defamation inCanada (2nd ed.), vol. 1, at No. 7.3.) See also Hiltz and Seamone Co. v. Nova Scotia (Attorney General) (1997), (NS SC), 164 N.S.R. (2d) 161 (S.C.), atpara. 21, aff’d in part (1999), 1999 NSCA 22 , 173 N.S.R. (2d) 341 (C.A.); Grant, at para. 119; “Truth” (N.Z.) Ltd. v.Holloway, [1960] 1 W.L.R. 997 (P.C.); Lambert v. Thomson, (ON CA), [1937] O.R. 341 (C.A.), per Rowell C.J.O.;Pullman v.

Walter Hill & Co., [1891] 1 Q.B. 524 (C.A.), at p. 527, per Lord Esher M.R. [17] Mr. Crookes argues that, under this definition, a person who includes a hyperlink on a webpage has “published” anydefamatory remarks to which the hyperlink leads, because that person has done

an act which “has the effect of transferring thedefamatory information” to any third person who clicks on the link. [18] Under this sole disseminator/sole reader paradigm, the breadth of activity captured by the traditional publication ruleis vast. In R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207, for example, a printer’s servant, whose only role in

an act of publicationwas to “clap down” the printing press, was found responsible for the libels contained in that publication, despite the fact that he was notaware of the contents (p. 207). In Hird v. Wood (1894), 38 S.J. 234 (C.A.), pointing at a sign displaying defamatory words was held tobe evidence of publication. Other cases have also held that acts merely facilitating communication can amount to publication: see, e.g.,Buchanan v. Jennings, [2004] UKPC 36, [2005] 1 A.C. 115; Polson v. Davis, 635 F.Supp. 1130 (D. Kan. 1986), aff’d 895 F.2d 705(10th Cir. 1990); Crain v. Lightner, 364 S.E.2d 778 (W.

Va. 1987), at p. 785; and Spike v. Golding (1895), 27 N.S.R. 370 (S.C. inbanco). And in McNichol v. Grandy, the defendant was found to be liable when he raised his voice and made defamatory statements thatwere overheard by someone in another room. [19] The publication rule has also captured the following range of conduct: [The defamatory meaning] may be communicated directly by the defendant either orally, or in some written or printed form,or by way of a symbolic ceremony, dramatic pantomime, mime, brochure, gesture, handbill, letter, photograph, placard, poster, sign, orcartoon.

It may be inscribed on a blackboard, posted on a mirror or a telephone pole, or placed on the wall of a building or the gablewall of the defendant’s property, or on the front of a cheque, or entered in a database, or accessed on or downloaded from a website onthe internet. It may appear on an ariel banner flown behind an airplane, or someone’s attention may be drawn by the defendant to aposter, or a defamatory writing already in circulation.

A third person may be given access to defamatory material, or defamatory mattermay be left in a place where others can see it, or the defendant may request others to go to a place where the defamatory information isavailable to see and read it, or it may be set into motion as a result of the defendant’s death. In each case there is a publication.

[Footnotes omitted.] (Raymond E. Brown, Brown on Defamation (2nd ed. (loose-leaf)), at para. 7.3) [ 20 ] Defendants obtained some relief from the rule’s significant breadth with the development of the “innocent dissemination” defence, which protects “those who play a secondary role in the distribution system, such as news agents, booksellers, and libraries”: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law (8th ed. 2006), at pp. 783-84; see also Society of Composers, Authors and Music Publishers of Canada v.

Canadian Assn. of Internet Providers , 2004 SCC 45 , [2004] 2 S.C.R. 427 (“ SOCAN ”), at para. 89 ; Philip H. Osborne, The Law of Torts (4th ed. 2011), at p. 411. Such “subordinate distributors” may escape liability by showing that they “have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel” ( SOCAN , at para. 89 ; Vizetelly v. Mudie’s Select Library, Ltd. , [1900] 2 Q.B. 170 (C.A.) , at p. 180 ; Brown, at para. 7.12(6)(c); and also Sun Life Assurance Co. of Canada v. W. H.

Smith and Son Ltd. (1934), 150 L.T. 211 (C.A.), at pp. 212-14). [ 21 ] Recently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication. In Bunt v.

Tilley , [2006] EWHC 407 , [2006] 3 All E.R. 336 (Q.B.) , considering the potential liability of an Internet service provider, the court held that in order to hold someone liable as a publisher, “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words ” (para. 23 (emphasis in original); see also Metropolitan International Schools Ltd. v.

Designtechnica Corpn. , [2009] EWHC 1765 , [2011] 1 W.L.R. 1743 (Q.B.) ). [ 22 ] Acknowledging these developments, the question on this appeal is whether a simple reference — like a hyperlink — to defamatory information is the type of act that can constitute publication. Some helpful guidance on this point is available in two American cases. In Klein v.

Biben , 296 N.Y. 638 (1946), the New York Court of Appeals decided that a statement saying “For more details about [the plaintiff], see the Washington News Letter in The American Hebrew, May 12, 1944” (p. 639) was not a republication of the May 12 libel. [ 23 ] And in MacFadden v. Anthony , 117 N.Y.S.2d 520 (Sup. Ct. 1952) , a complaint of defamation was dismissed in a case where a radio host “called attention to [an allegedly defamatory]

article in Collier’s Magazine” (p. 521). Relying on Klein , the court concluded that referring to the

article was neither a republication nor a publication of the libel. [ 24 ] These cases were relied on in Carter v. B.C. Federation of Foster Parents Assn. , 2005 BCCA 398 , 42 B.C.L.R. (4th) 1 , where the plaintiff alleged that, by mentioning the Internet address of an online discussion forum, the publisher of a newsletter was responsible for republishing defamatory comments published on that site. Relying on MacFadden and Klein for the proposition that “reference to an

article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment” (para. 12), Hall J.A. held that there was no publication. [ 25 ] I agree with this approach. It avoids a formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources.

Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation in my view. [ 26 ] A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists.

The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not. Even where the goal of the person referring to a defamatory publication is to expand that publication’s audience, his or her participation is merely ancillary to that of the initial publisher: with or without the reference, the allegedly defamatory information has already been made available to the public by the initial publisher or publishers’ acts.

These features of references distinguish them from acts in the publication process like creating or posting the defamatory publication, and from repetition. [ 27 ] Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary

article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what

article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary

article to which he or she has linked. (See David Lindsay, Liability for the Publication of Defamatory Material via the Internet (2000), at pp. 14 and 78-79; Collins, at paras. 2.42 to 2.43 and 5.42.) [ 28 ] These features — that a person who refers to other content generally does not participate in its creation or development — serve to insulate from liability those involved in Internet communications in the United States: see Communications Decency Act of 1996 , 47 U.S.C. § 230 (1996); see also Jack M. Balkin, “The Future of Free Expression in a Digital Age” (2009), 36 Pepp. L. Rev. 427, at pp. 433-34; Zeran v.

America Online, Inc. , 129 F.3d 327 (4th Cir. 1997); Barrett v. Rosenthal , 146 P.3d 510 (Cal. 2006) ; Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC , 521 F.3d 1157 (9th Cir. 2008). [ 29 ] Although the person selecting the content to which he or she wants to link might facilitate the transfer of information (a traditional hallmark of publication), it is equally clear that when a person follows a link they are leaving one source and moving to another.

In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content. ( See Dell Computer Corp. v. Union des consommateurs , 2007 SCC 34 , [2007] 2 S.C.R. 801 , at paras. 97-102 .) [ 30 ] Hyperlinks thus share the same relationship with the content to which they refer as do references.

Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a

third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than withfootnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any controlover, the content to which it refers. [31] This

interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law. This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or herreputation, but also the public’s interest in protecting freedom of expression: Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130. [32] Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation.

That began tochange when the Court modified the “honest belief” element to the fair comment defence in WIC Radio Ltd. v. Simpson, 2008 SCC 40,[2008] 2 S.C.R. 420, and when, in Grant, the Court developed a defence of responsible communication on matters of public interest.

These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundationalrole of freedom of expression in the development of democratic institutions and values (Grant, at para. 1; Hill, at para. 101). [33] Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciationof Charter values, but also with the dramatic transformation in the technology of communications. See June Ross, “The Common Lawof Defamation Fails to Enter the Age of the Charter” (1996), 35 Alta. L.

Rev. 117; see also Jeremy Streeter, “The ‘Deception Exception’:A New Approach to

Section 2(

b) Values and Its Impact on Defamation Law” (2003), 61 U.T. Fac. L. Rev. 79; Denis W. Boivin,“Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1996-1997), 22 Queen’s L.J. 229; LewisN. Klar, Tort Law (4th ed. 2008), at pp. 746-47; Robert Danay, “The Medium is not the Message: Reconciling Reputation and FreeExpression in Cases of Internet Defamation” (2010), 56 McGill L.J. 1; the Hon. Frank Iacobucci, “Recent Developments ConcerningFreedom of Speech and Privacy in the Context of Global Communications Technology” (1999), 48 U.N.B.L.J. 189; Reno v.

AmericanCivil Liberties Union, 521 U.S. 844 (1997), at p. 870. [34] The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovationsof the information age” whose “use should be facilitated rather than discouraged” (SOCAN, at para. 40, per Binnie J.). Hyperlinks, inparticular, are an indispensable part of its operation. As Matthew Collins explains, at para. 5.42: Hyperlinks are the synapses connecting different parts of the world wide web.

Without hyperlinks, the web would be like alibrary without a catalogue: full of information, but with no sure means of finding it. (See also Lindsay, at pp. 78-79; Mark Sableman, “Link Law Revisited: Internet Linking Law at Five Years” (2001), 16 Berkeley Tech.L.J. 1273, at p. 1276.) [35] The centrality of the role of hyperlinks in facilitating access to information on the Internet was also compellinglyexplained by Anjali Dalal in “Protecting Hyperlinks and Preserving First Amendment Values on the Internet” (2011), 13 U. Pa. J.

Const.L. 1017: Hyperlinks have long been understood to be critical to communication because they facilitate access toinformation. They provide visitors on one website a way to navigate to internally referenced words, phrases, arguments, and ideas. Under this view, if the Internet is an endless expanse of information where “any person . . . . can become a pamphleteer” then“[h]yperlinks are the paths among websites, creating the bustling street corners for distribution of those pamphlets and inviting passersbyto engage more deeply with the issues raised.” . . . . . .

While the concerns motivating cases brought against hyperlinks are often legitimate, limiting the use of linksposes a significant danger to communication and future innovation. [Emphasis in original; footnotes omitted; pp. 1019 and 1022.] [36] The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness bysubjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result,freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary

article authors wouldunlikely want to risk liability for linking to another

article over whose changeable content they have no control. Given the coresignificance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rulein these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity. [37] I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nordo I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments.

It is clear that “theright to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium forall kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v.

Lopehandia(2004), (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” toharm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation & Discoursein Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64: Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they arecommunicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation.

Once amessage enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forumfrequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding itinstantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. Theextraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truthrarely catches up with a lie”.

The problem for libel law, then, is how to protect reputation without squelching the potential of the Internetas a medium of public discourse. [Blair J.A.’s emphasis deleted.]

[38] New activities on the Internet and the greater potential for anonymity amplify even further the ease with which areputation can be harmed online: The rapid expansion of the Internet coupled with the surging popularity of social networking services like Facebook andTwitter has created a situation where everyone is a potential publisher, including those unfamiliar with defamation law. A reputation canbe destroyed in the click of a mouse, an anonymous email or an ill-timed Tweet. (Bryan G. Baynham, Q.C., and Daniel J.

Reid, “The Modern-Day Soapbox: Defamation in the Age of the Internet”, inDefamation Law: Materials prepared for the Continuing Legal Education seminar, Defamation Law 2010 (2010), at p. 3.1.1) [39] But I am not persuaded that exposing mere hyperlinks to the traditional publication rule ultimately protectsreputation. A publication is defamatory if it both refers to the plaintiff and conveys a defamatory meaning: Grant, at para. 28.

Theseinquiries depend, respectively, on whether the words used or “the circumstances attending the publication are such as[] would leadreasonable persons to understand that it was the plaintiff to whom the defendant referred” (Brown, at para. 6.1), and whether the wordswould “ten[d] to lower a person in the estimation of right-thinking members of society” (Botiuk v. Toronto Free Press Publications Ltd., (SCC), [1995] 3 S.C.R. 3, at para. 62).

Defamatory meaning in the words may be discerned from “all the circumstancesof the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whomthey were published and the manner in which they were presented” (Botiuk, at para. 62, citing Brown (2nd ed. 1994), at p. 1-15). (SeeBrown, at paras. 5.2, 5.4(1)(

a) and 6.1; Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116 (H.L.); Butler v. Southam Inc.,2001 NSCA 121, 197 N.S.R. (2d) 97; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214, at paras. 63and 112.) [40] Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, theplaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant.

In this way, individualsmay attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because theyhave created a reference, but because, understood in context, they have actually expressed something defamatory (Collins, at paras. 7.06to 7.08 and 8.20 to 8.21).

This might be found to occur, for example, where a person places a reference in a text that repeats defamatorycontent from a secondary source (Carter, at para. 12). [41] Preventing plaintiffs from suing those who have merely referred their readers to other sources that may containdefamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations. As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to.

If a plaintiff wishes toprevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created andcontrols the content. [42] Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is notpublication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats thedefamatory content, should that content be considered to be “published” by the hyperlinker.

Such an approach promotes expression andrespects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation. While amere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits ofthe one writer/any act/one reader paradigm may deserve further scrutiny in the future. [43] I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue inthis case, and links that automatically display other content.

The reality of the Internet means that we are dealing with the inherent andinexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alonecomprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links,for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in thecourts below, and therefore need not be addressed here. III. Application [44] Nothing on Mr.

Newton’s page is itself alleged to be defamatory. The impugned conduct in this case is Mr.Newton’s insertion of hyperlinks on his webpage. Mr. Crookes’ argument is that by linking to webpages and websites containingallegedly defamatory content, Mr. Newton has published that defamatory content. Since in my view the use of a hyperlink cannot, byitself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, Mr. Crookes’ action against Mr.Newton cannot succeed. Moreover, even if Mr. Crookes had alleged that Mr.

Newton should be understood, in context, to haveexpressed defamatory meaning, I would agree with the trial judge and the majority of the Court of Appeal that the statements containingthe impugned hyperlinks on Mr. Newton’s page could not be understood, even in context with the hyperlinked documents, to express anyopinion — defamatory or otherwise — on Mr. Crookes or the hyperlinked content. [45] I would dismiss the appeal with costs. The following are the reasons delivered by [46] The Chief Justice and Fish J. — We have read the reasons of Deschamps J. and Abella J.

While we agree in largepart with the reasons of Abella J., we respectfully propose a different formulation of the test for when a hyperlink reference in a textconstitutes publication of defamatory matter to which it links. [47] The question, in legal terms, is when inclusion of a hyperlink in a text constitutes publication of a defamation in thehyperlinked material. Abella J. states that “a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers”(para. 14).

As justification, she notes that the hyperlinker has no control over the content referred to; the hyperlinker is not the creator ofthe content, and the content of the page linked to may change at any time (paras. 26-27). A hyperlink, therefore, is a reference andreferences are by definition “content-neutral” (para. 30).

[48] Abella J. concludes that “[o]nly when a hyperlinker presents content from the hyperlinked material in a way thatactually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker” (para. 42). In our view,the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publicationof a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinkedtext.

If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus,defendants linking approvingly to an innocent Web site that later becomes defamatory would not be liable. [49] Finding publication in adoption or endorsement of the defamatory material in a Web site is consistent with thegeneral law of defamation. In Hill v.

Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, at para. 176, thisCourt held: If one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel.

Both the person who originally utters the defamatory statement, and the individual who expresses agreement with it, are liable for theinjury. [50] In sum, in our view, a hyperlink should constitute publication if, read contextually, the text that includes thehyperlink constitutes adoption or endorsement of the specific content it links to. [51] It is true that the traditional publication rule does not require the publisher to approve of the material published; heor she must merely communicate that material to a third party.

However, the proposed adoption or endorsement standard for referencesis conceptually different. A mere reference without any adoption or endorsement remains that — a content-neutral reference. Adoptionor endorsement of the content accessible by a link in the text can be understood to actually incorporate the defamatory content into thetext. Thus, the content of the text comes to include the defamatory content accessed via hyperlink.

The hyperlink, combined with thesurrounding words and context, ceases to be a mere reference and the content to which it refers becomes part of the published text itself. [52] We add a final comment, with an eye to future technological changes. Abella J., as noted, states that “a hyperlink,by itself, should never be seen as ‘publication’ of the content to which it refers” (para. 14). So long as it is necessary to click on ahyperlink to access its content, this may be correct.

What, however, of features in which a hyperlink projects content on the pageautomatically, or in a separate frame, with little or no prompting from the reader? Would inclusion of such a hyperlink, by itself, amountto publication? Like the issue of embedded hyperlinks, this question is not before us and should not be taken to have been decided in thiscase. Like Abella J. (at para. 43), we would leave issues concerning hyperlinks of this sort to be dealt with if and when they arise. [53] We agree with Abella J. that this appeal should be dismissed with costs.

The following are the reasons delivered by [54] Deschamps J. — This appeal offers yet another opportunity for the Court to consider the proper balance in thecommon law of defamation between the protection of reputation and the promotion of freedom of expression. In WIC Radio Ltd. v.Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, and Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Court took incrementalsteps to improve this balance by recognizing and modernizing defences to liability for defamation.

In the instant case, the Court mustdetermine whether, notwithstanding these defences, the scope of conduct that may attract prima facie liability for defamation is itself toobroad and in need of adjustment to further promote freedom of expression. [55] Proof of publication is necessary in order to establish liability for defamation. “Publication” has an establishedmeaning in the law of defamation. It refers to the communication of defamatory information in such a way that it is “made known to athird party”: Gaskin v. Retail Credit Co., (SCC), [1965] S.C.R. 297, at p. 299.

Professor Brown explains that “[i]t is abilateral act by which the publisher makes available to a reader, listener or observer in a comprehensible form the defamatoryinformation” (R. E. Brown, Brown on Defamation (2nd ed. (loose-leaf)), at para. 7.2).

Thus, publication has two components: (1) an actthat makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by athird party in such a way that it is understood. [56] The question is whether the first component of publication needs to be reconsidered owing to the impact of newforms of communications media. In answering this question, it will of course be necessary to bear in mind the particular technologicalfeature — the Internet hyperlink — at issue in the case at bar.

At the same time, however, the answer must be adaptable to other modesof communication and to future technological change. [57] I have read the reasons of my colleague Abella J. It is her view that the concept of publication as understood atcommon law needs to be altered so as to exclude references, including hyperlinks, from its scope.

No longer must a reference, like anyother act, simply make the defamatory information available in a comprehensible form: “Only when a hyperlinker presents content fromthe hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by thehyperlinker” (para. 42). With respect, I disagree with this approach. I have also read the reasons of the Chief Justice and Fish J. Theypurport to approve Abella J.’s approach but, in effect, find that there are circumstances in which hyperlinked information can lead to afinding of publication.

In so doing, they depart from the bright-line rule proposed by Abella J. In order to give guidance, I would preferto outline a rule that is consistent with the common law and the civil law of defamation and that will also accommodate futuredevelopments in Internet law. [58] To create a specifically Canadian exception for references, which has the effect of excluding hyperlinks from thescope of the publication rule, is in my view an inadequate solution to the novel issues raised by the Internet. On the one hand, thisblanket exclusion exaggerates the difference between references and other acts of publication.

On the other hand, it treats all references,from footnotes to hyperlinks, alike. In so doing, it disregards the fact that references vary greatly in how they make defamatoryinformation available to third parties and, consequently, in the harm they can cause to people’s reputations. [59] A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media,

would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first componentof publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Courtshould make it clear that not every act, but only deliberate acts, can lead to liability for defamation. [60] Freedom of expression must be reconciled with the “equally important” right to reputation: Hill v. Church ofScientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, at para. 121.

Unlike my colleague Abella J.’s approach, the one Ipropose gives due weight to freedom of expression yet at the same time is grounded in a recognition that even simple references todefamatory information can significantly harm a person’s reputation.

It would enable individuals whose reputations are so harmed toseek relief from those who, through deliberate acts, make defamatory material readily available to third parties. [61] If the person who made the reference was unaware that the information referred to was defamatory, the defence ofinnocent dissemination may be available: Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of InternetProviders, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN”), at para. 89.

In addition, as the Court mentioned in WIC and Grant, defencessuch as fair comment and reasonable communication on matters of public interest are also available. With respect, a shortcoming in mycolleague’s approach is that she fails to consider the law of defamation generally, and instead focuses narrowly on one aspect of the rulesgoverning publication.

The result is problematically one-sided, as individuals who suffer harm to their reputations are left with norecourse against those who perpetuate defamatory information. [62] A reference, devoid of context, has never amounted in law to publication of the information to which it directs thethird party. To so hold would be to disregard the bilateral nature of publication. Publication is not complete until someone other than theperson referred to receives and understands the defamatory information. Thus, “to shout aloud defamatory words on a desert moor whereno one hears them, is not a publication” (Gambrill v.

Schooley, 93 Md. 48 (1901), at p. 60). In the context of the Internet, a simplereference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, isnot publication of that content. [63] In the instant case, the respondent, Jon Newton, admits that he hyperlinked to information that the appellants,Wayne Crookes and West Coast Title Search Ltd., allege to be defamatory. In the circumstances, Mr. Newton acted as more than a mereconduit in making the hyperlinked information available. His action was deliberate.

Inasmuch as one link made the allegedly defamatorymaterial readily available, the requirements of the first component of publication are satisfied for that link. However, publication is notcomplete unless the plaintiff adduces evidence that satisfies, on a balance of probabilities, the requirements of the second component ofpublication: that a third party received and understood the information to which reference is made. I agree with the majority of the Courtof Appeal that the evidence adduced with respect to the second component of publication is insufficient in this case.

I would thereforedismiss the appeal with costs and add that Mr. Newton might also have been able to raise defences to liability for defamation. I. Background [64] Two broad types of hyperlinks can be found on Web pages. The first and most common is an ordinary link. It isalways user-activated: the Internet user clicks on a link on a Web page and is transferred to another page. The second type, which is oftenautomatic but can also be user-activated, is created by a process referred to as “framing”.

Unlike with ordinary links, in the case offraming, the Internet user does not leave the original Web page: information from another Web page appears in a “frame” on the pagealready accessed by the user. Where the framing is automatic, the content of other pages appears simultaneously in a frame when theuser accesses the primary page. Moreover, a hyperlink can be either a “shallow” link to a site’s home page or a “deep” link to a pagelocated on that site or another site.

Both types of hyperlinks, as well as the distinction between shallow and deep links, have previouslybeen referred to by the Court (SOCAN; Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, at para.4; and see, generally, M. Collins, The Law of Defamation and the Internet (3rd ed. 2010), at para. 2.43). In addition to Web pages, avariety of other forms of Internet communications can contain hyperlinks, including e-mail messages and on-line fora.

In these reasons,the terms “hyperlink” and “link” will, unless otherwise specified, be used to refer to user-activated hyperlinks. [65] On July 18, 2006, Mr. Newton published an

article on his Web site. It was entitled “Free Speech in Canada” andcontained the following passage: Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto,he, too, is being sued for defamation. This time by politician Wayne Crookes. We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepitdefamation laws and tomorrow, p2pnet will run a post from Mike on his troubles.

He and I will also be releasing a joint press statementin the very near future. [A.R., at p. 125] [66] The underlined text in this passage constituted hyperlinks, which Mr. Newton admits he created. The evidenceindicates that “OpenPolitics.ca” was a shallow link to the Web site in question, on which, Mr. Crookes alleges, several interlinkedarticles defaming him could be found. The evidence further indicates that “Wayne Crookes” was a deep link to an

article on another Website, www.USGovernetics.com, that Mr. Crookes also alleges to be defamatory. These impugned hyperlinks were among seven differentlinks contained in Mr. Newton’s

article and were both preceded and followed by other hyperlinks. All the hyperlinks and the informationto which they referred the user could be accessed by the public on line without restrictions. [67] On August 18, 2006, Mr. Crookes wrote to Mr. Newton and demanded that the hyperlinks “OpenPolitics.ca” and“Wayne Crookes” be removed. He received no response. On October 31, 2006, Mr. Crookes’ lawyer wrote to Mr. Newton anddemanded that the hyperlinks be removed. On November 9, 2006, Mr. Newton refused to do so. In response to interrogatories that weresubsequently addressed to him, Mr.

Newton offered the following explanation for his refusal to remove the hyperlinks: “I saw no need.It was merely a hyperlink” (A.R., at p. 186). [68] As of February 1, 2008, the

article “Free Speech in Canada” had been accessed 1,788 times. There is no informationin the record on how many people — if any — read the allegedly defamatory material, or on whether any person who may have viewedthe material accessed it by clicking on the two hyperlinks or by other means. The evidence is also silent on the behaviour of Internet

surfers with respect to hyperlinks, and on the jurisdiction in which any individuals who may have read the hyperlinked material reside. [ 69 ] Mr. Crookes and his company, West Coast Title Search Ltd., sued Mr. Newton for defamation in British Columbia. The parties brought applications for

summary trial and judgment under Rule 18A of the British Columbia Supreme Court Rules , B.C. Reg. 221/90. Kelleher J. granted Mr. Newton’s application and dismissed the action, finding that there had been no publication ( 2008 BCSC 1424 , 88 B.C.L.R. (4th) 395). [ 70 ] Kelleher J. rejected Mr. Crookes’ contention that publication by Mr. Newton of the allegedly defamatory material should be presumed from the fact that he had created the hyperlinks.

In the trial judge’s view, the plaintiffs’ failure to adduce any evidence that people had actually clicked on the hyperlinks and read the information was fatal to their position (paras. 20 and 24). Kelleher J. also concluded that the circumstances of the case did not support a finding of publication, drawing an analogy between a hyperlink and a footnote or a reference to a Web site in printed material (para. 29). Although the hyperlinks provided “immediate access to material published on another website” (para. 30), they did not make Mr.

Newton a publisher of what readers would find if they chose to click on the link. Kelleher J. endorsed the proposition of the British Columbia Court of Appeal in Carter v. B.C. Federation of Foster Parents Assn. , 2005 BCCA 398 , 42 B.C.L.R. (4th) 1, that “reference to an

article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory [comment]” (para. 33). He cautioned, however, that this did not mean that a hyperlink can never lead to liability for defamation. If Mr. Newton had written “the truth about Wayne Crookes is found here ” and the word “ here ” was a hyperlink to defamatory information, Kelleher J. might have concluded differently (para. 34). [ 71 ] A majority of the British Columbia Court of Appeal dismissed the appeal ( 2009 BCCA 392 , 96 B.C.L.R. (4th) 315).

The judges were unanimous in rejecting Mr. Crookes’ argument that the creation of a hyperlink leads to a presumption of publication of the information to which the link points. Prowse J.A., who spoke for the court on this issue, noted that the legislature had provided for a presumption of publication in the case of broadcasts and newspapers, but not of the Internet (paras. 32-33).

She was not prepared to create such a presumption on the basis of the record before her, and she expressed the opinion that this was a matter that might more appropriately be determined by the legislature (para. 41). [ 72 ] Saunders J.A. (Bauman J.A. concurring) wrote the reasons of the majority on the issue of whether publication could be inferred from the circumstances of the case. In her view, it could not. Accepting the bilateral nature of publication, she found that the hyperlinks did not satisfy the requirements of the first component of the definition of that term.

She relied on the same jurisprudence as Kelleher J. in support of the proposition that merely referring to defamatory information without repeating it does not constitute publication (para. 81, citing Carter ; MacFadden v. Anthony , 117 N.Y.S.2d 520 (Sup. Ct. 1952) ; Klein v. Biben , 296 N.Y. 638 (1946)). However, the circumstances of a case can demonstrate that a particular hyperlink invited or encouraged a reader to view the hyperlinked site, or that the information on that site was endorsed (para. 84). The majority held that there were no such circumstances in the instant case and that the way Mr.

Newton presented the hyperlinks to potential users was “most comparable to a footnote for a reader, or a card index in a library” (para. 89). On the second component of publication, Saunders J.A. expressed the opinion that the bare number of 1,788 hits on Mr. Newton’s

article was insufficient to support an inference that at least one person other than Mr. Crookes had clicked on the hyperlinks and read the allegedly defamatory information (para. 92). [ 73 ] Prowse J.A., dissenting, agreed with the majority on the first component of publication, but held that the circumstances of the case supported an inference that readers had been actively encouraged by Mr. Newton to click on the hyperlinks. In other words, the hyperlinks were being presented in such a way that they operated as more than simple footnotes.

Furthermore, on the second aspect of publication, Prowse J.A. was prepared to infer that at least one person in British Columbia had clicked on the hyperlinks and read the impugned information. As a result, she found that there had been publication and stated that she would have allowed the appeal. II. Positions of the Parties [ 74 ] Mr. Crookes argues that there is a presumption of publication whenever there are facts from which it can reasonably be inferred that the allegedly defamatory information was brought to the knowledge of some third person.

Applying this proposition to hyperlinks, he contends that given the “deliberateness, immediacy and facilitation of access [to information]” that characterizes such links, the hyperlinked information should be understood to have been incorporated into the Web page on which the links were embedded. As a result, “[i]t can be reasonably inferred that embedding a hyperlink in the primary

article brings the contents of the hyperlinked material to the knowledge of a third person [who accesses that article]” (A.F., at paras. 61-62). [ 75 ] Building on these arguments, Mr. Crookes also submits that the circumstances of this case would support an inference of publication. He disputes the position of the majority of the Court of Appeal that Mr. Newton’s hyperlink was comparable to a footnote, arguing that “[i]n the present case the barrier to accessing the defamatory comment is attenuated. All that is required is a keystroke” (A.F., at para. 75).

He endorses Prowse J.A.’s approach, supporting her finding that the context of Mr. Newton’s hyperlinks, together with the 1,788 hits on Mr. Newton’s article, was sufficient to support an inference that at least one of those who read the

article had clicked on the hyperlinks and read the allegedly defamatory information. [ 76 ] As for Mr. Newton, he rejects the view that publication should be presumed or inferred in the case of hyperlinks. Furthermore, he supports the finding of Kelleher J. and of the majority of the Court of Appeal that the evidence of 1,788 hits on his

article was insufficient to support a conclusion that readers of the

article had actually clicked on the hyperlink and read the allegedly defamatory information (R.F., at para. 35). [ 77 ] More fundamentally, Mr. Newton’s position is that hyperlinking does not constitute publication: a user-activated hyperlink “involves no transmission, copying or presentation of the alleged defamation, no control over its content, and no control over whether a reader makes the choice to follow the hyperlink” (R.F., at para. 58).

He disputes the view that the fact that a hyperlink facilitates access to the linked information should justify a finding of publication, since publication “only occurs when a message is both posted and read” (para. 57). He also submits that, since any user-activated hyperlink could to some degree be considered an “invitation” to click on the link, it would be wrong to find that there was publication on the basis of such an invitation. This submission, too, is based on the principle that publication is not complete until the allegedly defamatory information is read. Finally, the fact that the creation of a

hyperlink was deliberate cannot in itself be the basis for a finding of publication, since the question is “whether the bilateralposting/reading test for publication is met, and the insertion of a hyperlink alone does not meet either part of the test” (para. 85). III. Positions of the Interveners [78] The interveners in this appeal take divergent approaches to when, if ever, a hyperlink could be said to constitutepublication of the information to which it refers.

The approach of my colleague Abella J. most closely resembles that of the CanadianCivil Liberties Association, which argues that publication “should be reserved for those situations where an individual actuallycommunicates the allegedly defamatory words” (Factum, at para. 52). The result my colleague reaches is also consistent with theposition taken by a group of interveners composed of print, broadcast and Internet media organizations.

They argue that hyperlinksshould never be equated with publication, because that would threaten the ability of its members to compete and fulfil their mandates inthe Internet age (Media Coalition Factum, at paras. 42-43). [79] Certain other interveners — the British Columbia Civil Liberties Association (“BCCLA”), the Samuelson-GlushkoCanadian Internet Policy and Public Interest Clinic (“CIPPIC”), and NetCoalition — accept that hyperlinking may constitute publicationin appropriate circumstances, but seek to restrict those circumstances to instances involving variants of knowledge or explicitendorsement or adoption of linked information by the hyperlinker (e.g., BCCLA Factum, at paras. 22 and 24; CIPPIC Factum, at para. 2;NetCoalition Factum, at para. 4).

CIPPIC takes this argument a step further, submitting that a plaintiff must prove publication on “aconvincing evidentiary basis” (Factum, at para. 4). Finally, NetCoalition submits that, where a hyperlinker has not explicitly endorseddefamatory information or where there is no nexus between the hyperlink and such an endorsement, a defence of innocent disseminationshould be available (Factum, at para. 34). IV.

Analysis [80] When a plaintiff seeks to establish prima facie liability for defamation, the court must not only consider whether theimpugned information can reasonably be said to be defamatory and whether it in fact refers to the plaintiff, but must also consider thequestion of publication to a third party, bearing in mind the bilateral nature of publication. To be published, defamatory words must be“communicated” (Grant, at para. 28). “Communication” means that a message is both sent in a comprehensible form, and received andunderstood.

Publication does not occur until “the defamatory matter is brought by the defendant or his agent to the knowledge andunderstanding of some person other than the plaintiff” (McNichol v. Grandy, (SCC), [1931] S.C.R. 696, at p. 704, perDuff J. (as he then was); Brown, at paras. 7.2 and 7.8; Gatley on Libel and Slander (11th ed. 2008), at p. 164). [81] To determine whether

an act can form the basis for a finding of publication, it is first necessary to consider thenature of the act itself. [82] Acts that may form the basis for a finding of publication and which may ultimately attract liability for defamationhave never been limited to acts of the author or creator of the defamatory information. Rather, “[a]ll those jointly responsible for thepublication are liable. Liability extends to all those who take

part in the publication of the defamatory material, including those whomerely cause or procure it to be published” (Brown, at para. 7.4 (footnotes omitted); Gatley on Libel and Slander, at p. 169; Lambert v.Thomson, (ON CA), [1937] O.R. 341 (C.A.), at p. 344: “. . . where the libel is published in a newspaper or book,everyone who takes

part in publishing it or in procuring its publication is prima facie liable”). As this Court noted in Botiuk v.

TorontoFree Press Publications Ltd., (SCC), [1995] 3 S.C.R. 3, at para. 75, “the design or agreement of persons to participate inacts which are tortious” is sufficient for them to be found liable for defamation as joint concurrent tortfeasors even if “they did not realizethey were committing a tort”. [83] Historically, it has been understood that the precise method employed to make information available is immaterial:“There are no limitations on the manner in which defamatory matter may be published” (Brown, at para. 7.3). In Day v.

Bream (1837), 2M. & Rob. 54, 174 E.R. 212, for example, a person who merely delivered parcels was held prima facie liable for putting them intopublication; and in R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207, a case referred to by my colleague Abella J., a printer’s servantwhose sole role was to “clap down” the printing press was found to be responsible for publication. However, the law has changed in thecenturies that have elapsed since Day v. Bream and R. v.

Clerk. [84] The courts have begun incrementally to impose limitations on the nature and types of actions that can attract liabilityfor defamation at common law. To understand this evolution, it will be helpful to look broadly at cases from both the United States andother common law jurisdictions, such as England and Australia. I note that in considering the U.S. cases, we must be mindful of theimpact of the First Amendment on the protection of expression in the United States, and of certain significant statutory limits on liability(see comments to this effect: Godfrey v.

Demon Internet Ltd., [1999] 4 All E.R. 342 (Q.B.), at pp. 343-44; Dow Jones & Co. v. Gutnick,[2002] HCA 56, 210 C.L.R. 575, at para. 52). [85] There appears to be an emerging consensus among the courts and commentators that only deliberate acts can meetthe first component of the bilateral conception of publication. According to Prof. Brown, “a person must knowingly be involved in theprocess of publishing the relevant words” (para. 7.4 (emphasis added)). In Stanley v.

Shaw, 2006 BCCA 467, 231 B.C.A.C. 186,pleading that the defendants “said and did nothing” (para. 7) was held to be insufficient to support a finding of publication, because notortious act had been alleged in relation to their silence (see also Smith v. Matsqui (Dist.) (1986), (BC SC), 4 B.C.L.R.(2d) 342 (S.C.), at p. 355; Wilson v. Meyer, 126 P.3d 276 (Colo. Ct. App. 2005), at p. 281 (“[a] plaintiff cannot establish [publication] byshowing that the defendant silently adopted a defamatory statement”); Pond v.

General Electric Co., 256 F.2d 824 (9th Cir. 1958), at p.827 (“[s]ilence is not libel”); Brown, at para. 7.3). In Scott v. Hull, 259 N.E.2d 160 (Ohio Ct. App. 1970), at p. 162, a U.S. court held that“liability to respond in damages for the publication of a libel must be predicated on a positive act, on something done by the personsought to be charged”. I agree with this view. [86] A deliberate act may occur in a variety of circumstances. In Byrne v. Deane, [1937] 1 K.B. 818 (C.A.), thedefendants, proprietors of a golf clu

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