Supreme Court decision in hyperlinks and defamation case may have opened more doors than it closed: Norton Rose

The Supreme Court of Canada may have raised more questions than it answered when it decided Wayne Crookes, et al. v. Jon Newton, a libel matter related to Web site hyperlinks, according to a recent Norton Rose Group ‘Legal Update.’
In that case, the Supreme Court ruled a Web site 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,” the court ruled. “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.”
Norton Rose said it remains to be seen how the decision will play out in future court decisions related to Internet libel.
For example, the majority in Crookes leaves open the possibility that the decision might not apply to automatic links that operate without the intervention of the reader, Norton Rose says.
Also, the law firm asks, how will future courts deal with a situation in which a person is successfully sued for defamation based on a posting intended for a very select audience, but in which the posting unexpectedly ends up being widely viewed through numerous third-party links?
“Will the author be liable for all the consequences of a posting that unexpectedly ‘goes viral?” the Norton Rose update says. “Will all those who knowingly link to the posting escape liability despite their deliberate acts in making the defamatory material widely known?
“In such cases, courts may feel inclined to prefer the concurring opinion of the two judges who would allow a finding of liability where the creation of a hyperlink, understood in its context, constitutes an adoption or endorsement of the defamatory material to which it links.”