Academic journal article Canada-United States Law Journal

Canadian V. American Defamation Law: What Can We Learn from Hyperlinks?

Academic journal article Canada-United States Law Journal

Canadian V. American Defamation Law: What Can We Learn from Hyperlinks?

Article excerpt

Introduction

The United States and Canada, both former British colonies, inherited the common law from their colonial forbearers. (1) The evolution of that law in the respective judicial systems of these North American neighbors has produced two systems that in some ways are quite similar and in other ways are quite different. (2) The law of defamation is one area where the differences between the current jurisprudence of the two countries are particularly pronounced. (3) Generally, Canadian courts are known to be quite plaintiff-friendly in defamation cases, (4) whereas American legislators have made a concerted effort to ensure that U.S. courts' more defendant-friendly laws are not thwarted by other countries. (5) However, through a series of decisions in the past five years, the Supreme Court of Canada (SCC) has drastically altered Canada's defamation jurisprudence to give defendants some new defences. (6) Nevertheless, the fundamentals of defamation law in the U.S. and Canada remain quite different; in fact, one of those recent SCC decisions characterized U.S. defamation law as an "extreme[]" among the laws of western countries, and envisioned Canada's path as avoiding that extreme by pursuing a "middle road." (7)

In both countries, traditional defamation law has been forced to adapt to the advent of the internet and the proliferation of online communications. (8) This note will explore one particular aspect of the two countries' internet defamation jurisprudence that, on first glance, appears to be a close similarity. Specifically, the treatment of hyperlinks in the defamation context in Canada and the U.S. in two recent cases appeared to be identical: courts in both countries refused to hold a defendant liable for publishing a hyperlink to defamatory content on a website. However, a comparative analysis of the two opinions illustrates that the SCC's use of American precedents in reaching its decision actually symbolizes the wide divergence between the two countries on the legal treatment of republication.

This note will first provide, in turn, overviews of both American and Canadian defamation law and will highlight their traditionally different approaches to the issue of republication. In the U.S., defamation defendants in the majority of jurisdictions have been protected by the "single publication rule," (9) whereas Canadian defendants are subjected to the, albeit somewhat limited, "multiple publication rule." (10) Subsequently, this note will examine recent cases that have emerged from both countries in which the use of hyperlinks is considered in the context of defamation suits. In the U.S., the Third Circuit Court of Appeals recently addressed the issue in In Re: Philadelphia Newspapers, LLC, (11) (hereinafter Newspapers) while the Supreme Court of Canada tackled it head on in Crookes v. Newton. (12) Both courts rejected the notion that the sole act of hyperlinking to defamatory content constituted the publication or republication of defamatory content. The Third Circuit explicitly justified its holding as the simple application of the single publication rule to the online world, and the SCC relied on American cases to hold that hyperlinks do not constitute republication of defamatory material. However, this note will argue that the way in which the SCC's opinion in Crookes utilized American jurisprudence actually emphasizes the difference between the American single publication rule and the Canadian adherence to the multiple publication rule.

I. The Current State of Defamation Law and How We Got There

This section will provide overviews of defamation law in both the U.S. and Canada by briefly discussing defamation's historical development and the key decisions that have shaped its modern form. While a full discussion of each nation's defamation jurisprudence is beyond the scope of this note, this section's purpose is to discuss the general contours of defamation law in each country with a focus on how courts in each country treat the issue of republication. …

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