Crookes revisited: the law of libel around internet links

By Ryan Van Horne January 5, 20185 January 2018

Crookes revisited: the law of libel around internet links

Does publishing a hyperlink amount to libel? Not unless the person publishing it repeats the original defamatory content.

That’s what Halifax-based Frank Magazine has been arguing, relying on the 2011 Supreme Court of Canada ruling in Crookes v. Newton, which found that hyperlinks are content neutral. The satire publication asked a Halifax court to dismiss two of the four counts it faces of violating a publication ban in a child-protection case.

The two charges stem from tweets in February, April and May of this year by the magazine of links to an article it published in January 2015. Because violating a publication ban under Nova Scotia's Children and Family Services Act is a summary offence, and the six-month time limit has expired, the charge for publishing the January 2015 article should be dismissed, argues lawyer David Hutt of Burchells LLP, a Halifax-based law firm. Hutt represents Coltsfoot Publishing Ltd., the parent company of Frank Magazine, and Frank's managing editor Andrew Douglas. Hutt also argues that the hyperlinks to that article do not amount to publication and that the count relating to the publication of tweets with hyperlinks to the January 2015 article on Frank's website should also be dismissed.

In court, Hutt told Halifax Provincial Court Judge Michael Sherar that although the Crookes ruling was about defamation, the court's reasoning is a “rough fit” in this case.

Coltsfoot and Douglas are alleged to have violated a publication ban under Nova Scotia’s Children and Family Services Act. It is a strict liability offence that has a maximum penalty of a $10,000 fine and/or up to two years in jail.

Section 94(1) of the CFSA reads: “No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this act, or a parent or guardian, a foster-parent or a relative of the child.”

In their original story, Frank published the names of the children's mother, father, and maternal grandmother. They also published the name of the small Nova Scotia community in which they reside with their mother, their father's profession, his employer, as well as the maternal grandmother's hometown.

The private prosecutor in this matter is a single mother who was a subject of the child-protection hearing along with her children and their father. Frank Magazine reported on that case in relation to another matter and wrote that the woman had no credibility because she made up allegations against her ex-husband. However, as a result of that hearing, the mother got full custody of her children and the father could only have supervised access.

The private prosecutor has argued that if the Crookes ruling suggests that hyperlinks do not amount to publication, they fall under the second aspect of the legislation which makes it an offence to “make public” any identifying information.

“The words “make public” are also part of the act and are not there without reason,” she told Sherar. “Publication covers all traditional publication aspects and make public covers everything else.”

She contends that by tweeting a hyperlink to their own story from January 2015 that Douglas and Frank Magazine were repeating that story and “making it public.”

In Crookes, Justice Rosalie Abella wrote the majority opinion for the court, which held that a person who publishes a hyperlink is not responsible for the content on a third-party site because they have no control over it.

The private prosecutor suggests because of that reasoning, Crookes is not a good fit in this case because there is no such risk in this case. Frank Magazine knew what the article said and was the only party able to control it.

Media and defamation lawyer Adam Lazier, of Davis Wright Tremaine in New York, doesn't think who controls the content on a site is crucial to the court's reasoning. “My read of what Crookes is saying is that is one justification that she throws out there, but that's not the main factor that the decision turns on,” said Lazier, who co-authored an article about the Crookes case for the Alberta Law Review with Iris Fischer in 2012.

“My understanding of  it […] is that it really defines the posting of a hyperlink as a completely different act from publication,” said Lazier. “It's not just a question of whether you yourself are responsible for the content you're linking to, but it's saying there's a fundamental difference between referencing something using a hyperlink and creating it, and that only creating it is publication – at least under the meaning of that term in defamation law.”

Hutt declined to comment for this article, but in court he argued that the definition of “publish” is to “make public” and cited Black's Law Dictionary as his source.

When Sherar asked the private prosecutor to respond to this argument, she suggested that the legislators who wrote this law put “make public” in there for a reason and wanted to cover any possible action that would reveal the identity of young people involved in child-protection hearings.

“You have to look at what was intended by the Act,” she said, referring to a recent Nova Scotia Court of Appeal case that dealt with statutory interpretation. “As long as it’s available, it meets the definition of make public.”

The offending information was available up until August 10 of this year when Frank redacted the article to remove any references to a child-protection matter.

When Sherar heard this, it prompted him to ask the private prosecutor if that was enough for her. “Is that a possible resolution?” he said.

The two parties have agreed to attempt to resolve the matter outside court.

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