Linking To Defamatory Comments Does Not Constitute Publication

Article originally published in McCarthy Tétrault Co-Counsel: Technology Law Quarterly on February 12, 2009

The B.C. Supreme Court recently ruled that merely hyperlinking to defamatory material, without repeating the comments itself, does not amount to publication. In Crookes v. Wikimedia Foundation Inc., the court dismissed a defamation action against an individual who had hyperlinked an article on his website to alleged defamatory articles on other websites. The defendant himself did not write or post any defamatory words on his website, nor did he quote from the contentious articles.

To succeed in an action for defamation, plaintiffs must prove publication. Under B.C. legislation, publication is presumed for statements made in books or newspapers or broadcast to the public. In this case, the plaintiffs argued that posting a hyperlink to a website containing defamatory words constitutes publication of the defamation.