2008 October 27

Crookes v. Wikimedia Foundation Inc., 2008 BCSC 1424, appeal dismissed by the British Columbia Court of Appeal: 2009 BCCA 292

Following a summary trial, the British Columbia Supreme Court dismissed this libel action in which the plaintiffs alleged they had been defamed in four articles on the internet published on two websites.  The defendant N wrote an article commenting on the implications of defamation actions for those who operate internet forums.  In that article, the defendant N inserted hypertext links to the two websites containing the allegedly defamatory articles.  The plaintiffs did not allege that the defendant N wrote or published any defamatory words; they alleged that N’s conduct in posting hypertext links to websites containing defamatory material constituted publication of the defamatory words in the latter websites.

The Court held that “[w]ithout proof that persons other than the plaintiff visited the defendant’s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication. As in Crookes v Holloway, the plaintiffs have not adduced any evidence to support this claim.”  The Court continued: “…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.” Further, the Court held, “[a]lthough a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site.  This is especially so as a reader may or may not follow the hyperlinks provided.” “Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website.  I conclude that does not make the publisher of the web address a publisher of what readers find when they get there.”

The Court made it clear, however, that this decision did not mean that hyperlinking can never make a person responsible for the contents of the remote site. “For example, if [the defendant N] had written “the truth about [the plaintiff] is found here” and “here” is hyperlinked to the specific defamatory words, this might lead to a different conclusion.”