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[25] That brings me to the second issue, whether creating a hyperlink to defamatory material is publishing the defamation.
[26] In Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1, the Court of Appeal considered whether publication of a web address or "URL" in a newsletter constituted publication of the contents of the website.  The Court of Appeal held that it did not ...
[27] Thus, the court declined to rule on whether publication of an internet location by a hyperlink amounts to publication of the contents of the linked website.
[28] That is the question that arises squarely in the present case.  I agree with the defendant that footnotes in an article are an apt analogy.  Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed.  
[29] A hyperlink is like a footnote or a reference to a website in printed material such as a newsletter.  The purpose of a hyperlink is to direct the reader to additional material from a different source.  The only difference is the ease with which a hyperlink allows the reader, with a simple click of the mouse, to instantly access the additional material.  
[30] Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site.  This is especially so as a reader may or may not follow the hyperlinks provided.  
[31] I conclude that the reasoning of the Court of Appeal in Carter leads to the same conclusion on the narrower issue before me.  Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website.  I conclude that that does not make the publisher of the web address a publisher of what readers find when they get there.  
[32] In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself.  The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles.  In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content.
[33] As the Court of Appeal observed in Carter, citing the proposition of the New York cases MacFadden v. Anthony and Kline v. Biben, ?reference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory content?.
[34] 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 "the truth about Wayne Crookes is found here" and "here" is hyperlinked to the specific defamatory words, this might lead to a different conclusion.  
[35] I conclude that there has been no publication.  The action is therefore dismissed.

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