Libel and Hyperlinks

October 4, 2010

Islam Expo Ltd, the company that organises the IslamExpo exhibitions, brought a claim for libel against the Spectator in relation to a blog on its web site in July 2008 which, it was alleged, suggested that Islam Expo was ‘a fascist party’ and ‘dedicated to genocide’ and that the exhibition had a racist and genocidal programme. The judgment of Mr Justice Tugenhadt in the case concerned the issue of whether the words complained of were capable of being understood to refer to the claimant in the meaning pleaded in the Particulars of Claim.

The Spectator had pleaded justification and alternatively fair comment and made an application that the article was not capable of bearing the defamatory meaning alleged when read in conjunction with hyperlinked material from the original article.

The judge considered this but found that the hyperlinked material made no difference to the outcome on meaning, which he held was defamatory. The Spectator has now apologised for the ‘unintended and false’ allegations and paid damages.

Although the judge did not have to consider whether content in hyperlinks should be considered in determining the meaning of the words complained of, so this issue is still as yet unresolved, this case is important because it acknowledges that when a defendant publisher has linked to another’s web site, the linked content may be treated as part of the whole publication when it comes to deciding meaning.

The Supreme Court of British Columbia in the case of Crookes v Wikimedia Foundation Inc 2008 BCSC 1424 held that a publisher was not liable for republishing defamatory content in hyperlinks as these were akin to footnotes, although it did say that the situation might be different if the publisher endorsed the linked content.

This Spectator case still leaves open the question to whether publishers are liable for linked content and publishers will have to wait until this issue is looked at again by the courts. However, there does seem to be an inherent conflict between publishers on the one hand, relying on linked material to determine meaning and yet on the other hand, arguing that they are not liable for content in hyperlinks as they are akin to footnotes.

In the meantime, publishers should take care when providing links to other content that the links are akin to footnotes and that they do not endorse or comment on the underlying content in any way, particularly if it is defamatory.   

Elaine Heywood is a Partner at Blake Lapthorn, based in their Southampton office. Elaine specialises in defamation, media law and commercial litigation.