We have previously commented on the series of defamation lawsuits  commenced by Wayne Crookes.  These lawsuits are resulting in court judgements which have established some guidance in this emerging area.  The latest decision, Crookes v. Wikimedia Foundation Inc., 2008 BCSC 1424 has established that linking to defamatory content does not, in itself, amount to publication of that content.  In other words, the publisher of an article which links to the defamatory content, without reproducing it, is not liable for the defamation. The court stated that “the mere creation of a hyperlink in a website does not lead to a presumption that persons read the contents of the website and used the hyperlink to access the defamatory words.”  And the court went on to say that “reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content”.

The court’s analysis refers to evidence of whether anyone linked to and read the defamatory content, leaving open the question of whether different facts would have resulted in a different conclusion.  Liability may arise where there is ample evidence that numerous readers used the link to access the defamatory content, or in a situation where the linked content is used to refer directly to the defamed person.  The court speculated that if an article states “the truth about [the defamed person] is found here” and “here” is hyperlinked to the specific defamatory words, then the publisher of the article may be liable.

There was also a recent defamation decision in Ontario, giving rise to $50,000 in damages for online defamation.

A third decision, in Manson v. Moffat, [2008] O.J. No. 1697, resulted in a damage award of $20,000 for internet libel, and an injunction was issued against the U.S. defendant.  The case arose from false statements posted online relating to the plaintiff’s patent.

Calgary – 10:00 MST