“Publication” of a defamatory statement is an essential element of the tort of defamation. The Supreme Court of Canada has held that a hyperlink on a website does not, by itself, constitute “publication” of the hyperlinked material for the purposes of defamation liability. A hyperlink merely provides a path from one location to another on the Internet. It communicates that something exists but does not communicate its content. The court equated it to a footnote that references a source without adopting or endorsing it. One who creates a hyperlink but utters no defamatory words of his own is not responsible for content displayed on another website when a user links through.
On the other hand, a hyperlinker who presents content from the hyperlinked source in a way that endorses, approves of or repeats the defamatory content will be considered to have “published” the content. For example, if the linker adds text that communicates agreement with or approval of the linked material (as opposed to a mere general reference to a website) then the hyperlinker has published the statement and can be held liable for the defamatory content.
Inserting a hyperlink gives the hyperlinker no control over the content to which he or she has linked. This lack of control over changing content available at the linked webpage is an important factor, as is lack of knowledge that the linked material has become defamatory. One who links approvingly to an innocent website that later changes and becomes defamatory is not liable but may become liable if after becoming aware of the defamatory content the linker refuses to remove, obliterate or unlink it. In these circumstances it may be appropriate to draw an inference of approval or adoption and the hyperlinker may become responsible for it.
Receipt of the communication by a third party is also essential for there to be a “publication.” In the pre-Internet age, it was essentially presumed that once published a defamatory statement was read. No more. There is now a burden on the plaintiff to show, not only that the defamatory statements were posted online, but also that someone clicked through and read the material.
If the posting of the hyperlink to the Internet could be considered a “publication” for the purpose of defamation liability it is important for the plaintiff to act quickly as there are very short limitation periods in some cases. Failure to serve written notice of the intention to make a claim within six weeks after the alleged libel has come to the plaintiff’s knowledge may prevent the plaintiff from pursuing a claim.