“Without proof that persons other than the plaintiff visited the defendantâ€™s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication.”
However, the judge added that:
“I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written â€˜the truth about Wayne Crookes is found hereâ€™ and â€˜hereâ€™ is hyperlinked to the specific defamatory words, this might lead to a different conclusion.”
The legality of linking has been a thorny issue for some time, both in the U.S. and elsewhere. As this handy guide from the Chilling Effects website describes, linking to certain material — including that which infringes copyright — has been found to be illegal by the courts in the past. Google itself has been forced to remove certain links from its search results, including (in one case) links to sites where users could download copyright-infringing copies of the Kazaa Lite software. The Electronic Frontier Foundation has a rundown on some cases as well.
Alfred Hermida of reportr.net, who teaches at the University of British Columbia’s graduate school of journalism, points to a video interview of Dan Burnett, a lawyer (and adjunct professor at the school) who defended Jon Newton in the case.