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.
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.
American Defamation Law
The current shape of defamation law in the U.S. owes its form to a series of now famous Supreme Court opinions that began with New York Times v. Sullivan (13) that collectively defines the constitutional standards for defamation. However, prior to Sullivan, defamation jurisprudence in the U.S. had been shaped solely by the common law and legislative enactments; it had not yet been impacted by the First Amendment. (14) In fact, in 1909 the United States Supreme Court refused to impose First Amendment restrictions on defamation when it upheld the common law rule of strict liability for libel suits, (15) and it reaffirmed that refusal four more times before Sullivan. (16) Moreover, U.S. defamation law prior to 1964 differed from state to state. (17) Most states operated under the principle of strict liability, with each state then supplying its own variations. (18) Courts generally presumed that any defamatory statements were false, placing the burden on the defendant to prove their truth as a defense. (19) In addition to truth, the qualified privilege of fair comment offered the other primary defense. (20)
In 1964, the Supreme Court's landmark decision in Sullivan constitutionalized the law of defamation, (21) drastically altering the landscape of the country's defamation jurisprudence. (22) The Sullivan Court held that:
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (23) The Court justified its holding by noting that the protection of the all-important democratic principle of free expression necessitates the allowance of "unpleasantly sharp attacks on government and public officials." (24)
The actual malice standard requires defamation plaintiffs to show that the defendant subjectively knew or had significant doubt that the published statements were false. (25) Absent that showing, a defamation plaintiff cannot recover. A decade after Sullivan, the Court in Gertz v. Robert Welch, Inc. (26) clarified that the actual malice standard applies when the plaintiff is a public official or a public figure, (27) but does not apply when the plaintiff is a private figure. (28) To recover actual damages, private figure plaintiffs need only show some level of fault to be determined by the individual states. (29) However, Gertz also established that, regardless of the plaintiffs status, "the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." (30) Therefore, to receive the more lucrative awards that presumed or punitive damages could provide, even private plaintiffs need to show actual malice. In practice, it seems that after Sullivan and Gertz, the vast majority of defamation plaintiffs, regardless of private/public status, are faced with the burden of proving actual malice. (31)
Since Sullivan and Gertz, most U.S. defamation jurisprudence has emerged from state courts and lower federal courts, (32) with the Supreme Court reaffirming the vitality of Sullivan in 1988 by applying its actual malice standard to public figures' claims of intentional infliction of emotional distress. (33) However, the precise contours of each state's defamation laws vary above the constitutional floor set by the Supreme Court's jurisprudence. Generally, a defamation action must contain five elements: (1) false statements of fact, (2) of and concerning a person, (3) that are printed, broadcast, spoken or otherwise published, (4) that are defamatory, and (5) made with some degree of fault. (34)
Canadian Defamation Law
Defamation law in Canada is very similar to the status of American defamation law prior to the shift that started with Sullivan in 1964. When the SCC finally had occasion, in 1995, to address the constitutionality of Canadian defamation law, (35) it acknowledged that historical vintage by recognizing that "[t]he character of the law relating to libel and slander in the 20th century is essentially the product of its historical development up to the 17th century." (36) In its opinion in that case, Hill v. Church of Scientology of Toronto, (37) the Court was forced to contemplate the appropriate course for the judiciary in cases between private litigants that challenge the common law as violating the Canadian Charier of Rights and Freedoms [hereinafter Charter], The Court found that in such cases where no governmental action was involved, then only Charter values, as opposed to Charter rights, were at stake. (38) The Hill Court ruled that if a court finds that a challenged element of the common law is inconsistent with Charter values, then it could be appropriate to incrementally reform the common law by judicial decree. (39)
With that framework for Charter analysis set out, the Court then proceeded to examine the common law of defamation in light of the Charter values that it implicates. The Court explained that defamation cases inevitably force the balancing of the values of reputation and freedom of expression. (40) The value of free expression is explicitly enshrined in Section 2(b) of the Charter, (41) and the Court explained that "[although it is not mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights." (42)
In considering whether the state of the common law at that point struck an appropriate balance between those values, the Court rejected the actual malice standard (43) adopted by the U.S. in Sullivan by citing to a litany of American academic articles and judicial opinions that...