Publishing hyperlinks: can you be liable for linking to defamatory content?  

In a detailed judgment in the case of Caine v Advertiser And Times Ltd & Ors [2019] EWHC 2278 (QB), Richard Spearman QC, sitting as a Deputy Judge of the Queen’s Bench Division, was asked to consider, amongst other things, whether the Second and Third Defendants were liable as publishers of defamatory content found on the First Defendant’s Facebook page because they had provided hyperlinks to this content from their own Facebook pages.  On the facts Mr Spearman QC found that no such liability arose, but held that in certain situations hyperlinking might attract liability.   

Position before 2018 

Prior to 2018, there was a fair degree of uncertainty as to whether the publication of a hyperlink could give rise to liability, not least because the English courts had not been asked to consider the position directly.  Practitioners would often cite the decision of the Canadian Supreme Court in Crookes v. Newton (2011, SCC 47, [2011] 3.S.C.R. 269) where the Court was asked to determine whether the issue of whether creating a hyperlink to defamatory material constituted publication of the defamatory statements. The Court held that a person could not defame someone merely by publishing a hyperlink to a third-party website or document containing defamatory material. It stated, amongst other things:- 

“Hyperlinks are in essence references, which are fundamentally different from other acts of ‘publication’. Hyperlinks and references both communicate that something exists, but do not themselves communicate its content. 

... 

A hyperlink, by itself should never be seen as ‘publication’ of the content to which it refers. ... Only when the person or organisation doing so presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by that person or organisation” 

Crookes was of course a Canadian case and thus, whilst such authorities can be persuasive, there was some uncertainty as to whether it would be followed by the English Courts.  

More recently the European Court of Human Rights (ECHR) handed down judgment in Magyar Jeti Zrt v Hungary (App no. 11257/16) ECHR 4 March 2019, a case which also considered the liability of those publishing hyperlinks to defamatory content.  The Strasbourg Court made clear that the facts must be carefully considered in each case but that the following questions were relevant when considering whether a publisher of a hyperlink should be found liable:-   

1. Did the journalist endorse the impugned content?  

1. Did the journalist repeat the impugned content (without endorsing it)?  

1. Did the journalist merely include a hyperlink to the impugned content (without endorsing or repeating it)? 

1. Did the journalist know or could he or she reasonably have known that the impugned content was defamatory or otherwise unlawful? 

1. Did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism?

While Magyar dealt specifically with a provision of Hungarian law, the matters set out above are likely to be of assistance to English media lawyers and judges when they were asked to grapple with the same issue.  

Caine v Advertiser And Times Ltd & Ors [2019] EWHC 2278 (QB)  

The background to this judgment is procedurally complex, involving three separate claims and various applications.  The scope of this article is confined to highlighting a few interesting observations made by Mr Spearman QC in his judgment which ought to help practitioners to determine in subsequent cases whether the publication of a hyperlink can give rise to liability.  The following salient points can be distilled from the judgment:- 

• The Judge (and Mr Justice Dove in an earlier judgment in one of the related claims) cited Magyar and placed considerable reliance on it.  It therefore seems that the five questions set out above will form the starting point for judges when they are asked to consider this issue.  

• The Judge did not believe that a “liked” hyperlink to a Facebook page which contained many other items in addition to the alleged defamatory content and which changed over time, constituted an endorsement of the content complained of for the purposes of the first question raised in Magyar.  

• The Court should not adopt an “over-restrictive” approach to the freedom of expression of the provider of the hyperlink when considering question (iv).  The judge highlighted the distinction drawn by the Strasbourg court in Magyar between hyperlinked content which was within the realm of permissible criticism and thus lawful and content which could be seen “as clearly unlawful from the outset”.  

• Question (v) (i.e. whether the journalist acted responsibly) is primarily applicable to journalists, although the standards and responsibilities in question may also extend to “citizen journalists” and the requirement of “good faith” may be of general application.    

Comment 

Caine brings some clarity to the issue of whether the publication of hyperlinks can give rise to liability in this jurisdiction.  There are still, however, a number of grey areas and even with further judicial elucidation the answers to the questions raised in Magyar will almost always depend on the specific facts of each case.  While Mr Spearman QC was in little doubt that the second and third defendants had not endorsed the content complained of in Caine, there are likely to be other cases where the position is not so clear.  Magyar has certainly opened the door for arguing that liability may arise in certain situations for hyperlinking and the High Court appears to agree with its approach.   Given the propensity for internet users to share hyperlinks it is likely the subject will receive further judicial attention in the near future.  

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