Defamation Does Not Exist Simply By Hyperlinking

The recent decision of the Supreme Court of Canada in the case of Crookes v Newton is of interest to the BU family as it provides clear guidance on certain areas of internet defamation.

Largely, the case devolves around the use of hyperlinks, such as this one that will link readers to the CBC report and a full copy of the judgement – .

In essence, the court held that libel did not occur simply by a website producing a hyperlink to a site that might in itself be defamatory. However, if the website posting the hyperlink commented in a defamatory manner, then that is a different ballgame.

A very straightforward and common sense approach. But, as the BU family well knows, it is not as simple as that.

It is settled that if X (a USA citizen and resident) publishes a libellous comment about Y (a Bajan citizen and resident) in X’s USA website, then Y can bring an action for defamation in Barbados before the Barbados courts where the damage to Y’s reputation has been done.

The problem with that, of course, is that if X does not have assets in Barbados that can be charged to satisfy judgement and costs, then Y will have a hell of a time enforcing his judgement against X in the United States. So, while reputation may be restored, at least in Barbados, the enormous cost of restoring the reputation may well never be recouped. So the question remains: what is the value of the reputation?

There is also a problem in that the defamation laws vary from country to country.

So the law of internet defamation still remains doubtful and largely unenforceable, unless you have limitless financial resources.

However, it seems entirely reasonable and likely that most common law countries will accept this latest from the Supreme Court of Canada as being a worthy precedent. BU recommends that the family and readers follow the hyperlink to remain abreast of what can only be described as a fluid situation.

0 thoughts on “Defamation Does Not Exist Simply By Hyperlinking

  1. It will not be precedent in the Caribbean unless a ruling is made by our local court. but it may be persuasive.

  2. To David:
    I still think that you have to provide some guidance here as to the limits to what one can say or not say about someone by name on this blog. You do appreciate that one can say something that is true about another individual and be sued and lost because you do not have proof as to the veracity of your sayings about that individual. I would believe that you need to set some guidelines here; so that those who are very adventurous would know that they are on their own when the other person decides to go after them. I believe that this topic is very worthy of being fully ventilated by the BU family of real lawyers and or resident fire side lawyers.

  3. @Raquel Gilkes. You know you don’t need anyone to tell you that you are right and that the guidance given by the decision of the Supreme Court of Canada will likely be accepted by the Barbados courts and the CCJ and other courts in other common law jurisdictions.

    @lemuel. I agree completely. It is quite a complex area of law – or can be – even if it does not involve the Internet. Your point if correct that there are many instances in which you know the truth of a situation, but lack the evidence that a court would consider necessary. Regrettably, in these instances, it is best if you simply hold your tongue or your pen or your keyboard, because unless you have proof that will stand up in court, you expose yourself to an action for defamation. It has been previously stated that an absence of malice is probably the best defense against defamation. I happen to agree with that as a general guideline. Therefore, I recommend to you only two very simple avenues to follow that will likely give the best protection. First, have (and send David) the solid evidence of what you allege. Second, ensure that there is an absence of malice.

    As we move into the run-up for general elections, the blogs are going to be used (and often misused) by the spin doctors of the two main parties. Defamation in this respect comes under what has been called the “Public Figure Doctrine” and allows greater latitude when public figures are involved. However, once again absence of malice comes into play. Of course, public figures traditionally do not sue except in the most extreme circumstances, because, predictably, there is a certain amount of fear as to what other things such court cases might uncover and provide a platform for.

    I would say that David and his associates at BU have been extremely effective in dealing with the avoidance of possible accusations of defamation. They have not been slow to issue very public apologies where they feel that defamation has occurred and to remove the offending posts when these have slipped through. In my view, BU has acted honourably and fairly in all instances, even when the likelihood of effective legal retaliation has been slight to none. This shows the utmost good-will (“uberrima fides” for the Latin scholars amongst us) on the part of BU.

    However, BU/David, with the build-up to the elections kicking in and the spin doctors and party supporters looking for every advantage they can find, man, you got yuh wuk cut out fuh yuh!

  4. maybe the bu possie can talk in code/slang/patois to avoid several defamation charges, but as bu policy is not to remove postings they will be held accountable in court (not us)

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