Is Hyperlinking Considered Publication?

With social media innovations developing at a rapid pace, the law is struggling to catch up, but franchisors (or any operators of social media profiles) are certainly always interested in the extent of their liability by virtue of operating a website.  One particular source of liability involves the act of defamation.  With the ease of access and widespread dissemination of information posted online, this is a real source of concern for franchisors.

 

Some publishers may rely on the defence of “innocent dissemination”, which is available if they can demonstrate that they had no knowledge of the defamatory nature of the content, so long as that lack of knowledge was not due to negligence.  However, if a franchisor is actively moderating the content which is posted on its social media pages, it may be difficult to make the case  that it had no knowledge of defamatory language.

Some of this uncertainty was recently clarified by the Supreme Court of Canada decision of Crookes v. Newton, which considered whether the creation of a hyperlink leads to the presumption that the operator of the website published the materials available via that hyperlink.

 

Franchisors may find comfort in the court’s conclusion that a hyperlink is essentially no different than a footnote citation and, generally, should not be viewed as a “publication” of the content to which it refers.  The court stated that hyperlinks communicate that something exists, but do not, by themselves, communicate its content.  Further, hyperlinks give the author no control over the content in that secondary article.

 

As a result, franchisors may be relieved to know that if a consumer posts a defamatory link on the franchise Facebook wall, for instance, the franchisor may not necessarily be liable for the content of that link.