The Supreme Court of Canada recently held that linking to someone else’s website does not
constitute defamation:  Crookes v. Newton, 2011 SCC 47 (CanLII).  In this case, former Green party campaign manager Wayne Crookes argued that merely posting links to sites with defamatory statements was the same as publishing the defamatory material; however, Newton’s website did not make any comment nor reproduce any of the disputed material.

The Court in the majority held that “To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it.  … Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers.  This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.”  and “A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.  When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.”  In dissent, Justice Deschamps J. wrote that   “Excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet.”