2009 September 15
Crooks v. Wikimedia Foundation Inc., 2009 BCCA 392, , leave to appeal to Supreme Court of Canada granted April 1, 2010 (appeal has not yet been heard)
The British Columbia Court of Appeal sustained a lower court decision which dismissed this defamation lawsuit on the basis that the plaintiff had failed to prove publication of the allegedly defamatory words.
Discussing the “publication element” of the tort of defamation, the Court of Appeal stated that there are two aspects. “The first, relating to the defendant as publisher, concerns the act of promulgating the impugned item. The second, relating to the third party receiver of the impugned item, concerns the receipt of that item by a person within the court’s jurisdiction. (I refer to the issue of jurisdiction because publication, to be actionable, must be within this jurisdiction, and publication of internet material occurs where the words are read: King v. Lewis, [2005] E.M.L.R. 45, C.A.; Gutnick v. Dow Jones, [2002] H.C.A. 56.)”
As to the first aspect, the Court of Appeal held that the mere fact that the defendant hyperlinked the allegedly defamatory website did not constitute promulgating the defamatory words on that website. “Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.”
However, in an important caveat, the Court of Appeal agreed that “the circumstances of a case may add more so as to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents…So a statement to the effect “N is described at [hyper link]” may itself incorporate a libel so as to be defamatory.”
In this case, however, the Court of Appeal concluded that there was “no encouragement or invitation” by the defendant and that the statements on his website fell “far short of a statement of approbation, or adoption, and appear to me to be most comparable to a footnote for a reader, or a card index in a library. It is not, as was suggested is sometimes the way in the recent case Metropolitan Schools v. Google Inc., [2009] E.W.H.C. 1765 (Q.B.), a snippet from the article or a snippet produced by a search engine.”
On the second aspect, the Court held there was an insufficient basis on which to infer that a person in British Columbia accessed the impugned articles which were hyperlinked to the defendant’s website.