In a precedent setting decision, Crookes v. Newton, 2009 BCCA 392, (per Saunders and Bauman JJ.A.; Prowse, J.A. dissenting) a divided British Columbia Court of Appeal panel has concluded that hyperlinking an allegedly defamatory article does not constitute publication to attract liability as an online intermediary.
In Crookes v. Newton, the plaintiff alleged that he has been defamed in various articles, first appearing on the Internet in 2005. Three of the articles, entitled “Wayne Crookes”, “Friends of Crookes” and “Gang of Crookes” appeared on the website, www.openpolitics.ca . A fourth article, entitled “Wayne Crookes”, appeared on the website, www.usgovernetics.com. The defendant is the owner and operator of the website, http://www.p2pnet (“p2pnet”). On July 18, 2006, he wrote an article entitled“Free Speech in Canada” hyperlinking the Wayne Crookes article found on the usgovernetics website, and the openpolitics website containing other impugned articles, each of which were cross-hyperlinked, as well. The trial judge rejected the plaintiff’s argument that by creating these hyperlinks, or, by refusing to remove them when notified of their defamatory nature, constituted publication.
The issues on appeal were two-fold:
(1) whether the creation of a hyperlink in a website raises a presumption of publication of the materials found at the hyperlinked site?; and
(2) whether hyperlinking by the defendant in this particular case constituted publication?
Both the majority and the minority dissenting opinions agreed with the trial judge that there is no presumption of publication arising from the mere act of hyperlinking (at ¶ 42 per Prowse, J.A. and ¶ 78 per Saunders, J.A.) However, Saunders, J.A., in comparatively brief reasons, parts company with Prowse, J.A. on the key issue of whether the defendant’s hyperlinking of the articles regarding the plaintiff constituted publication, concluding:
 In my view, the approach taken by my colleague to the effect that from the number of persons accessing Mr. Newton’s website it may be inferred that a person in this jurisdiction accessed the impugned articles by clicking on them, does not sustain scrutiny. In the context of internet life, we have no way to assess the volume of “hits” here compared to the norm, the usual behaviour of internet readers or “surfers”, or the jurisdiction in which they reside. The conclusion drawn by my colleague is, with respect, tantamount to a presumption that in the case of a website accessed to any significant extent, there has been communication of the offensive material. This is contrary to her conclusion on the issue of presumption, and one with which I do not agree. The conclusion effectively reduces the element of publication to the role of the publisher without consideration of the receipt of the impugned material. There may be cases in which more is known supporting such an inference, but such is not the case here where all that is before us is the bald number of hits. In my view there is an insufficient basis upon which to make such an inference, and the inference drawn cannot co-exist with the reasons for judgment on the matter of a presumption.
In a lengthy and erudite dissent, Prowse, J.A. takes issue with the majority’s characterization of the defendant’s role as an online intermediary. At paragraph 25, the learned justice notes:
 The Internet has fostered an exponentially expanded opportunity for individuals to communicate about every conceivable matter to the world at large. It has, thus, created an exponentially expanded potential for the spread of defamatory material. This fact has presented challenges to courts seeking to find the balance between the competing values of freedom of speech and protection of reputation which arise in defamation cases. One expression of the nature of those competing interests in the Internet context is found in an article, Lyrissa Barnett Lidsky, “Silencing John Doe: defamation & discourse in cyberspace” (2000), 14:4 Duke L.J. 855, where the author, in commenting on the potential effects of “libel chill” on freedom of speech, states at 860-61, 863-64:
The promise of the Internet is empowerment: it empowers ordinary individuals with limited financial resources to “publish” their views on matters of public concern. The Internet is therefore a powerful tool for equalizing imbalances of power by giving voice to the disenfranchised and by allowing more democratic participation in public discourse. In other words, the Internet allows ordinary John Does to participate as never before in public discourse, and hence, to shape public policy.
(Prowse, J.A. also cited the landmark Australian decision in Dow Jones and Company Inc. v. Gutnick,  HCA 56, 210 CLR 575 and the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 for which Canada became a signatory on May 19, 1976.)
A major bone of contention is the “active vs. passive” dichotomy. Madam Justice Prowse observes:
 It is a significant feature of hyperlinking that the author of the original article makes a considered choice to hyperlink to another website or web article. (I am not dealing here with hyperlinks which may be added to a site by someone other than the website owner.) One would have thought that an author who creates such a hyperlink has some idea of what is contained on the linked site, and considers it relevant to the main article; otherwise why create the link? Here, however, Mr. Newton deposed that he had not read the hyperlinked articles prior to linking them to his article. In any case, the fact remains that it is this feature of choice in creating the hyperlink which distinguishes Mr. Newton’s linkage to the Wayne Crookes article and the openpolitics site from the linkage provided, for example, by ISPs when they are acting as a mere conduit of information found on their sites (who have been found in many cases not to be liable as publishers).
 I also agree with the trial judge, however, that hyperlinking may, in some cases amount to publication by the person creating the link. If it is apparent from the context in which the hyperlink is used that it is being used merely as a bibliographical or similarly limited reference to an original source, without in any way actively encouraging or recommending to the readers that they access that source, then, following Carter, I accept that this would not amount to publication.
 While the evidence of invitation to visit the hyperlinks was more subtle than a statement in the original article that “the truth about Crookes can be found here”, I find that the number of “views” of the original site, the fact that the article deals with free speech and defamation, and the reference to lawsuits involving Mr. Crookes, would have served as words of encouragement, or an invitation, to a person viewing Mr. Newton’s article to look further. In other words, I do not accept that the hyperlinks, when viewed in the context of the Newton article as a whole, operated as a “mere” bibliographical” footnote.
 In summary on this point, I find that the trial judge erred in failing to draw an inference on all of the evidence that Mr. Crookes had established publication of the hyperlinked articles to at least one third party.
Prowse, J.A.’s conclusion is apposite:
 …there is, in my view, no substantial difference between providing a web address and a mere hyperlink. Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.
 Nor am I persuaded that in this era of rapidly changing technology we should assume access from a mere web address mentioned in an article will require any more effort than from a hyperlink. It is easy to contemplate a program whereby a click of a computer mouse engages a program on the reader’s computer that effects the same result as a hyperlink. In other words, I agree with my colleague’s conclusion at para. 58:
I agree with the trial judge that the reasoning of this Court in Carter supports Mr. Newton’s position that the mere fact he hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites.
 I agree, as well, that the circumstances of a case may add more so as to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to go to a jury. So a statement to the effect “N is described at [hyper link]” may itself incorporate a libel so as to be defamatory.
In the US case of Stratton Oakmont v Prodigy 1995 WL 323710 (NY Sup Ct 1995), Prodigy, an online intermediary, deliberately chose to exercise editorial control over its online content and was held to be liable for defamatory statements posted on the defendant’s website. While control over content is laudable, it is arguable that the benefits of maintaining community standards and keeping the peace online are offset against a concomitant increase in the potential for liability. As Christopher K. Sandberg points out, to avoid this Catch-22, the Stratton Oakmont case was effectively overturned by the passage of the Telecommunications Act of 1996, which provides (codified in (47 U.S.C. §230):
“(c) PROTECTION FOR `GOOD SAMARITAN’ BLOCKING AND SCREENING OF
`(1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content provider.
`(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of–
`(A) any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected; or
`(B) any action taken to enable or make available to information content providers or others the technical means
to restrict access to material described in paragraph (1).
The more active, rather than passive, an intermediary is, the greater the likelihood that liability will attach to the intermediary as a publisher or re-publisher (see, Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY 1991) on the issue of when a website owner may establish that it did not have actual knowledge of the defamatory content). A carefully worded website disclaimer and terms of service stipulating that the website owner is merely a distributor is advisable. Blog readers should also take note of the cogently written decision of Mr. Justice Belobaba in Black v. Breeden 2009 WL 850497 (Ont. S.C.J.), 2009 CarswellOnt 1730, where the Ontario court assumed jurisdiction over the plaintiff’s actions in libel against the defendants who issued certain press releases and posted them on the defendant company’s website. The plaintiff, a former director of the defendant company, alleged that the press releases contained defamatory statements that were downloaded, read and republished in Ontario.
The Crookes v. Newton decision presents a welcome opportunity for the Supreme Court of Canada to clarify the nature and scope of online intermediary liability in internet defamation cases. Website owners are the fulcrum between the freedom of expression and protection of one’s reputation. Many website owners endeavour to promote online community standards. Where an internet service provider acts in good faith in improving the online community, one may argue that it is entitled to be shielded from liability for defamatory content; particularly if it was unaware and did not actively incite or propogate the cyberlibel. Whether or not the plaintiff seeks leave to appeal or the Supreme Court of Canada agrees to hear the appeal remains to be seen. Stay tuned.