Legal Research

Online Defamation ? Hyperlinked Content as ?Context?

By John Gregory

An English court has ruled that the material hyperlinked to an online article alleged to be defamatory can be read to put the article in ‘context’ to understand its meaning: Islam Expo Ltd v The Spectator [2010] EWHC 2011 (QB). (See the story on OutLaw.com.)

Despite the rather unusual statement by the judge that he took the hyperlinked material into account “without thereby intending to imply any ruling, one way or the other, as to whether that approach is right in law” (para 15), I don’t find what he did to be unusual.

Would not a Canadian court do the same thing? (Has a Canadian court already done the same thing? Para 11 of the judgment refers to a number of British Columbia authorities, which presumably refers to the cases involving links to defamatory material and whether that makes the mere reference to them itself defamatory. Crookes v Newton 2009 BCCA 329 is on its way to the SCC).)

If contracts can include hyperlinked clauses, which the SCC has said is similar to turning over a page to read the terms on the back, then surely publications that are alleged to be defamatory may have hyperlinked context.

It will be up to the court to decide if the context is any assistance. One can imagine links to material that is very remote from the substance of the defamatory publication. Indeed in the English case here, the court disagreed with the defendant (which had asked the court to look at the links) about the effect of reading them.

Is anyone surprised or concerned by this ruling?

Full post as published by Slaw.ca on August 10, 2010 (boomark / email).