In the landmark case of Crooks v. Newton, the Supreme Court of Canada clarified the law of defamation in the context of the internet, stating that merely linking to defamatory content on another web page does not constitute “publication,” and therefore is not defamatory in and of itself.
The Supreme Court of Canada relied upon an extensive body of law in coming to this conclusion, including constitutional principles stemming from the Charter of Rights and Freedoms. Justice Abella found that the implementation of the Charter, together with technological advancement, had increased the prevalence of freedom of expression considerations in defamation cases:
Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation. That began to change when the Court modified the “honest belief” element to the fair comment defence in WIC Radio Ltd. v. Simpson, 2008 SCC 40,  2 S.C.R. 420, and when, in Grant, the Court developed a defence of responsible communication on matters of public interest. These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundational role of freedom of expression in the development of democratic institutions and values (Grant, at para. 1; Hill, at para. 101) … Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications.
Decided by the Supreme Court of Canada on October 19, 2011.
Click here for the full text of the decision.