Supreme Court Says Bloggers are Safe to Use “Hyperlinks”

Supreme Court Says Bloggers are Safe to Use “Hyperlinks”       

Ontario Real Estate Source

By Brian Madigan LL.B.

Hyperlinks are part and parcel of blogging. They are part of the basic fabric of the internet and underlie the principle of freedom of speech.

At least, that’s the view of the Supreme Court of Canada.

At issue was whether a blogger should be held responsible for the defamatory remarks made by someone else on their own website, merely by reason of the fact, that the blogger inserted a “hyperlink” into their own blog or website.

Here are a few observations from the decision of Justice Rosalie Abella:

·        Hyperlinks are not to be considered as publications, and therefore cannot be defamatory.

·        Hyperlinks are, in essence, references, which are fundamentally different from other acts of publication. 

·        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.

·        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.

·        The Internet cannot . . . provide access to information without hyperlinks.

·        Limiting their usefulness by subjecting 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 case still leaves open the question of whether a particular blogger may have selectively chosen to hide behind the shield of hyperlinks while carefully offering defamatory remarks and in effect republishing them.

But, naturally in the vast majority of cases, the person who publishes the defamatory remarks will be responsible for them, and the blogger who merely makes reference by hyperlink will be safe.

See: Crookes v. Newton (2011) Supreme Court of Canada

Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com