SUPREME COURT OF CANADAC
ITATION
:
Crookes
v.
Newton, 2011 SCC 47
D
ATE
:
20111019
D
OCKET
:
33412
B
ETWEEN
:Wayne Crookes and West Coast Title Search Ltd.
Appellantsand
Jon Newton
Respondent- and -
Canadian Civil Liberties Association, Samuelson-GlushkoCanadian Internet Policy and Public Interest Clinic,NetCoalition, British Columbia Civil Liberties Association,Canadian Newspaper Association, Ad IDEM/Canadian MediaLawyers Association, Magazines Canada, CanadianJournalists for Free Expression, Writers’ Union of Canada,Professional Writers Association of Canada,PEN Canada and Canadian Publishers’ Council
Interveners
C
ORAM
:
McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron,Rothstein and Cromwell JJ.
R
EASONS FOR
J
UDGMENT
:
(paras. 1 to 45)
J
OINT
C
ONCURRING
R
EASONS
:
(paras. 46 to 53)
R
EASONS
C
ONCURRING IN THE
R
ESULT
:
(paras. 54 to 130)Abella J. (Binnie, LeBel, Charron, Rothstein and CromwellJJ. concurring)McLachlin C.J. and Fish J.Deschamps J.
N
OTE
:
This document is subject to editorial revision before its reproduction in finalform in the
Canada Supreme Court Reports
.
CROOKES
v.
NEWTON
Wayne Crookes and West Coast Title Search Ltd.
Appellants
v.
Jon Newton
Respondent
and
Canadian Civil Liberties Association, Samuelson-GlushkoCanadian Internet Policy and Public Interest Clinic,NetCoalition, British Columbia Civil Liberties Association,Canadian Newspaper Association, Ad IDEM/Canadian MediaLawyers Association, Magazines Canada, CanadianJournalists for Free Expression, Writers’ Union of Canada,Professional Writers Association of Canada,PEN Canada and Canadian Publishers’ Council
Interveners
Indexed as: Crookes
v.
Newton2011 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 containingcommentary about various issues, including free speech and the Internet. One of thearticles 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 thehyperlinks he created connected to defamatory material, and that by using thosehyperlinks, N was publishing the defamatory information. At trial, the judgeconcluded that the mere creation of a hyperlink in a website does not lead to apresumption that someone actually used the hyperlink to access the impugned words.The judge agreed that hyperlinks were analogous to footnotes since they only refer toanother source without repeating it. Since there was no repetition, there was nopublication. Furthermore, in the absence of evidence that anyone other than C usedthe 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 thatwhile some words in an article may suggest that a particular hyperlink is anencouragement or invitation to view the impugned site, there was no suchencouragement or invitation in this case. In addition, the number of “hits” on thearticle itself was an insufficient basis for drawing an inference in this case that a third
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