Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.
Abella then recognizes the crucial role that linking plays to the dissemination of information on the Internet and to freedom of expression:
The Internet’s capacity to disseminate information has been described by this Court as â€œone of the great innovations of the information ageâ€ whose â€œuse should be facilitated rather than discouragedâ€. Hyperlinks, in particular, are an indispensable part of its operation…The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential â€œchillâ€ in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.
Finally, Abella concludes:
Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. 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 â€œpublishedâ€ by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation. While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.
There are two additional opinions. Chief Justice McLachlan and Justice Fish emphasize that links could constitute publication if “read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” This is slightly different from Abella’s standard of repeating the defamatory content. Justice Deschamps offers a third opinion that also stands by the position that a mere hyperlink is not defamatory, but focuses on a deliberate act to make the information available as well as the need for a third party to have received and understood defamatory information.
This decision is amongst the most important the Supreme Court has issued involving the Internet. The court again demonstrates that it recognizes the importance of the Internet for freedom of expression and for the need to promote the ability to use the technology to disseminate information. The court clearly understood both the importance of linking as well as the technology behind a link. The decision rightly places responsibility for defamatory speech where it belongs – with the person who posted the content. There is still the ability to commence legal action against that person, but subjecting anyone that links to allegedly defamatory content to potential liability would have been very dangerous.
While the decision is focused on defamation, the court’s recognition of the limits of links does raise some interesting questions about other areas of the law including copyright, where some have tried to argue that linking to allegedly infringing content should itself constitute an infringement. This case doesn’t decide that issue, but it suggests that the court recognizes that there are important limits on liability for linking.
Update: Howard Knopf assesses the impact of this decision on Access Copyright’s efforts tariff proposal that seeks compensation for linking to recommended or required readings. Knopf argues “If a link or hyperlink by itself does not constitute â€œpublicationâ€ for defamation purposes, it is difficult to see how it could, by itself, constitute publication or reproduction or any other activity covered by the Copyright Act.”