The case between Wayne Crookes of West Coast Title Search and Jon Newton of the p2pnet.net blog is finally over, with the latter emerging the victor.
Crookes sued Newton after he linked to an allegedly defamatory post and refused to take the links down on request. Crookes insisted that by simply hyperlinking to the post in question, Newton had effectively become a publisher of the defamatory content.
“I would conclude that a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers,” wrote Justice Abella.
“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 adds.
Intent played an important role in the decision.
Abella notes that should someone who hyperlinks to a defamatory statement actually endorse or repeat defamatory content, they could indeed be seen as a publisher
The implications for linking to copyright material remain unclear.