A decision by the Supreme Court of Canada that says providing a hyperlink to a defamatory online article does not constitute publication, is “likely to have a significant impact on the way that lower courts approach Internet issues,” says Toronto lawyer Mark Hayes.

“As a result, unless the provider of the hyperlink repeats the defamatory content, they will not be liable for defamation,” says Hayes of the court’s finding in Crookes v. Newton, a highly-anticipated Internet defamation case. Read Story

“This is obviously a very important decision, both in a micro and macro sense,” said Hayes of Hayes eLaw LLP. Read Story

“In terms of the specific defamation issue before the court, the resolution by the majority of the judges is consistent with the historical principle of ‘publication’ and will ensure that Internet content aggregators will not be faced with unexpected defamation liability,” says Hayes, whose practice includes a focus on information technology and Internet law.

But Hayes believes that Crookes may have a much wider effect on the way that courts approach Internet issues generally.

“Everyone knows that the judges of the Supreme Court did not grow up with the Internet. As a result there has always been a concern that some of the members of the court may not be attuned to practical considerations that flow from the unique nature of Internet communications and community,” says Hayes. “With this decision, the court has shown that it will approach Internet liability issues from a practical viewpoint and will take pains to understand the unique context of online business and communication.

“This is very encouraging and is likely to have a significant impact on the way that lower courts approach Internet issues.”