Différends et enquêtes|19 octobre 2011
CCLA successfully intervenes in Supreme Court of Canada case concerning hyperlinks and defamation
Torys acted as counsel to the Canadian Civil Liberties Association with a team that included Wendy Matheson, Andrew Bernstein, Molly Reynolds and Sarah Whitmore.
On October 19, 2011, the Supreme Court of Canada released its decision in Crookes v. Newton, in which the Canadian Civil Liberties Association (CCLA) intervened. The issue was whether a person may be liable for defamation because they provide a hyperlink to a website that contains content that defames someone's character. The Court was asked to consider whether providing a link, without repeating the defamatory content, constitutes publication of the defamatory content. If so, the person who provided the link would be exposed to a claim for libel.
The website in question provided a link to another website where an alleged libel was posted. The plaintiff sued not only the people who had posted the document containing the alleged libel, but also the defendant Newton, who had put a hyperlink to it on his own website without repeating the alleged defamatory words.
Given that hyperlinks are ubiquitous on the Internet, numerous organizations intervened at the Supreme Court. The decision under appeal had held that hyperlinking itself was not publication, but it would become publication if the words associated with the hyperlink suggest "adoption" or "endorsement" of the material linked to. At the Supreme Court, the respondent and the other interveners all advanced some version of that position. Only the CCLA argued that hyperlinking could never constitute publication, and urged the Supreme Court to reject the "adoption" or "endorsement" rule because the uncertainty it would engender would interfere unduly with freedom of expression. The majority of the Court adopted a bright line test as advocated by the CCLA. The majority held, "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."
Torys represented the Canadian Civil Liberties Association on a pro bono basis.
Further information can be found on the Canadian Civil Liberties Association website.
The website in question provided a link to another website where an alleged libel was posted. The plaintiff sued not only the people who had posted the document containing the alleged libel, but also the defendant Newton, who had put a hyperlink to it on his own website without repeating the alleged defamatory words.
Given that hyperlinks are ubiquitous on the Internet, numerous organizations intervened at the Supreme Court. The decision under appeal had held that hyperlinking itself was not publication, but it would become publication if the words associated with the hyperlink suggest "adoption" or "endorsement" of the material linked to. At the Supreme Court, the respondent and the other interveners all advanced some version of that position. Only the CCLA argued that hyperlinking could never constitute publication, and urged the Supreme Court to reject the "adoption" or "endorsement" rule because the uncertainty it would engender would interfere unduly with freedom of expression. The majority of the Court adopted a bright line test as advocated by the CCLA. The majority held, "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."
Torys represented the Canadian Civil Liberties Association on a pro bono basis.
Further information can be found on the Canadian Civil Liberties Association website.