Canadian Supreme Court Says No Liability For Linking To Defamatory Content

from the link-away dept

Thu, Oct 20th 2011 5:00am — Mike Masnick

You may recall the story of Wayne Crookes, a Canadian with ties to the Green Party and, apparently, rather thin skin. He was upset about some comments made about him on various websites and decided to sue all sorts of people and companies -- including Google, Wikipedia and others. Many of those were dismissed over jurisdictional issues, but he also sued Jon Newton, the operator of P2Pnet.net for merely linking to some of the posts that Crookes was so upset about. Newton fought back. In 2008, a district court ruled that merely linking to defamatory content is not defamatory. That ruling was appealed. In 2009, an appeals court agreed, again reiterating to Crookes that linking is not defamatory. And yet, that ruling was appealed again, and the Canadian Supreme Court agreed to hear the case.

In a ruling this morning, the Supreme Court, once again, explained to Crookes that linking to defamatory content is not, by itself, defamatory. As the court states:

I would conclude that a hyperlink, by itself, should never be seen as �publication� of the content to which it refers.

Going into more detail:

Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked....

Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral - it expresses no opinion, nor does it have any control over, the content to which it refers.

As Michael Geist highlights at the link above, the Court goes above and beyond just explaining why hyperlinks don't represent defamation, but also explains how this is fundamental to a functioning internet and the concept of free speech.

The Internet�s capacity to disseminate information has been described by this Court as �one of the great innovations of the information age� whose �use should be facilitated rather than discouraged�. Hyperlinks, in particular, are an indispensable part of its operation...The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential �chill� in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

Geist also wonders if this ruling might be expanded to cover other forms of third party liability around linking. As we've seen in the US and elsewhere, governments (and the entertainment industry) are keen to pin liability for merely linking to infringing content. While this case doesn't directly discuss infringement, if you were to take the words of the ruling and substitute in copyright, it seems like the same basic concepts should apply.

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Filed Under: canada, defamation, jon newton, liability, links, supreme court, wayne crookes

28 Comments

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ethorad (profile), 20 Oct 2011 @ 5:15am

inducement?
It seems that their argument is it shouldn't count as republication as you have no control over the linked article - what you are linking to can be changed without your knowledge. As such, while that may avert a charge of publishing I would imagine the accusations of contributory infringement (as far as that exists) would still be thrown around if you were linking to something which either was infringing when you linked, or which you expected to be something which was infringing?

But then accusations get thrown even if the material isn't infringing ...
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- The eejit (profile), 20 Oct 2011 @ 5:21am
  
  Re: inducement?
  It's not infringing in this case, it's defamation. Just an FYI.
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  - Ron Rezendes (profile), 20 Oct 2011 @ 9:38am
    
    Re: Re: inducement?
    Yes, but either way, there is virtually no way to prove what was there when the link was made. Time stamps can be changed on either end resulting in false positives.
    
    Stick to going after the person posting the material - they are the ones who should shoulder the responsibility for their objectionable actions (I intentionally did not use the word illegal here!). Everyone else linking to such material are no different than the people who stand on the corner after an auto accident saying "Look, an auto accident!". They have nothing to do with any objectionable action but do point out to others that something has occurred that may demand their attention. Certainly not an action that should violate any law.
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  - ethorad (profile), 21 Oct 2011 @ 4:53am
    
    Re: Re: inducement?
    Agreed, however I was thinking of the last part:
    While this case doesn't directly discuss infringement, if you were to take the words of the ruling and substitute in copyright, it seems like the same basic concepts should apply.
    
    I was pointing out that even if this was extended to mean linking to infringing files wasn't considered infringing I think you would still end up getting sued for "promoting" infringement. The **AA would find something to throw at you.
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anonymous, 20 Oct 2011 @ 5:20am

yet create a hyperlink or any other type of link to a web site or page that can contain 'copyrighted' or 'infringing' material, and shit hits fan! seems to me that the rules change as and when needed, depending largely on who is bringing the law suit.
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BeaverJuicer, 20 Oct 2011 @ 5:39am

There are a lot of things our Government completely misses on, like the DMCA copycat they are trying to pass...

It's really refreshing to see our courts actually get something right for a change.
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- Greg, 20 Oct 2011 @ 11:01am
  
  Re:
  Our courts, especially the supreme, are generally good. Unfortunately, the politicians aren't quite in the same ballpark.
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Anonymous Coward, 20 Oct 2011 @ 5:52am

Here is a question: was the material in question actually found to be defamatory in a court of law, or was it only the plaintiff's opinion?
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- BearGriz72 (profile), 20 Oct 2011 @ 8:11pm
  
  Re: (was the material in question actually found to be defamatory in a court of law?)
  As far as I can tell he only sued Google (in re: Blogspot), Wikipedia, openpolitics.ca (a political forum set up by a "Green Party activist"), and a few other websites. The actual users posting the "objectionable" content are listed as "six anonymous defendants" implying that they were indeed a party to the suit, but it is possible that jurisdictional issues at play here may have precluded an actual verdict on the actual libel claims.
  
  From one of the linked articles: (http://www.techdirt.com/articles/20081028/0054072663.shtml)
  "It's somewhat interesting to try to follow the trail of what the actual libel is -- as many of the lawsuits for libel are focused on stories about (you guessed it) him filing for libel lawsuits (which certainly appears to be true, rather than libelous). With at least some of those lawsuits, the Canadian Supreme Court tossed them out, though over jurisdiction issues, rather than on the merits of the case."
  Personally, I think Wayne Crookes is a moron that should rot in jail for abusing the legal system.
  Come on Wayne, I'm not anonymous, want to try to sue me for my opinion?
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Scooters (profile), 20 Oct 2011 @ 6:21am

However, the link to the actual ruling...
...will net you a copyright infringement lawsuit.
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matics (profile), 20 Oct 2011 @ 6:28am

I love seeing rulings like these. The court actually recorded a reasonable and thorough explanation of their decision, which could be applied in defense of similar lawsuits from this point on.
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- Anonymous Coward, 20 Oct 2011 @ 5:01pm
  
  Re:
  Agreed. Wonderful ruling from the Canadian supremes. US supremes and Aussie high court, please note.
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out_of_the_blue, 20 Oct 2011 @ 7:04am

You were right until wonder how this can be used to dodge copyright:
"Geist also wonders if this ruling might be expanded to cover other forms of third party liability around linking. As we've seen in the US and elsewhere, governments (and the entertainment industry) are keen to pin liability for merely linking to infringing content. While this case doesn't directly discuss infringement, if you were to take the words of the ruling and substitute in copyright, it seems like the same basic concepts should apply."

There's just no way to regard that last paragraph as other than attempt to find a way around being charged with infringing. -- Once again, indirect linking and 3rd party hosting doesn't make infringement a right moral choice. Also, the "same basic concepts" should NOT apply, as the goal with linking to infringing material isn't free speech but THEFT of copyrighted works, likely with profits from advertising for both link site and host.
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- Anonymous Coward, 20 Oct 2011 @ 7:37am
  
  Re: You were right until wonder how this can be used to dodge copyright:
  In some ways, the problem lies with intent: Unless the material was specifically found to be defametory (and why would it still be online as a result?), there is little to say that you are linking to anything illegal.
  
  However, a site that links to infringing material has "intent" running against it, and it is unlikely the courts would rule in their favor.
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- BeeAitch (profile), 20 Oct 2011 @ 7:45am
  
  Re: You were right until wonder how this can be used to dodge copyright:
  You spelled INFRINGEMENT wrong.
  
  Why do you hate sharing so much?
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- Gwiz (profile), 20 Oct 2011 @ 8:27am
  
  Re: You were right until wonder how this can be used to dodge copyright:
  There's just no way to regard that last paragraph as other than attempt to find a way around being charged with infringing.
  
  Not really, it's trying to find the tool someone used to guilty of something.
  
  Sort of like suing Panasonic because they made the cassette recorder someone used to copy a copyrighted song.
  
  Once again, indirect linking and 3rd party hosting doesn't make infringement a right moral choice.
  
  I don't about everyone else, but my moral decisions will be made me and me alone, not you or anyone else.
  
  Also, the "same basic concepts" should NOT apply, as the goal with linking to infringing material isn't free speech but THEFT of copyrighted works, likely with profits from advertising for both link site and host.
  
  So what? In my example above, Panasonic surly made profits from selling cassette recorders. Still doesn't change the fact that it's only a tool.
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  - Anonymous Coward, 20 Oct 2011 @ 10:17am
    
    Re: Re: You were right until wonder how this can be used to dodge copyright:
    Gwiz, you make a great argument, except it fails in practical application.
    
    Panasonic has nothing to do with the copying in your example except to build machines. They have no clue.
    
    Now, if each box of Panasonic cassette recordered included a list of names and phone numbers for sources of pirated material, they would be liable.
    
    What you are missing is "intent". Panasonic just making a cassette recorder in "intent neutral". Providing a list of pirates to get cassettes from is "intent".
    
    Merely having a website isn't in itself intent. Having a website full of pirates sports feeds, DVD Ripz, or other stuff, actually hosted or linked still shows intent.
    
    Now, before you pull out the standard "search Google for torrents", let's also make it clear. There is a difference between a bot scanning the whole internet and listing everything it finds, compared with an individual running a site called "piratedsportsfeeds.com" and linking to a bunch of illegal streams. Intent. It's an amazing thing.
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    - Gwiz (profile), 20 Oct 2011 @ 12:11pm
      
      Re: Re: Re: You were right until wonder how this can be used to dodge copyright:
      I get what you are saying here. I still have problems with the whole intent angle though, since it's a fairly arbitrary thing to determine.
      
      For example, Rojadirecta's intent was (I assume) to run a website legal in it's home country.
      
      What if my intent was to host a website called ShareThis!, where users posted links to cool stuff. And as long as I followed the DMCA Safe Harbor rules and removed links to infringing content when I was notified of them, why should I be liable?
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      - Anonymous Coward, 20 Oct 2011 @ 10:19pm
        
        Re: Re: Re: Re: You were right until wonder how this can be used to dodge copyright:
        "For example, Rojadirecta's intent was (I assume) to run a website legal in it's home country."
        
        I doubt that. I suspect that Roja's intent was to run the site they run, and the local court just happened to agree (at least for the moment). Their intent is still to bring illegaly sourced feeds to the masses, the court in their part of the world just didn't seem to care.
        
        As for "Share This!", it would really depend on the layout and tone you bring to the discussion. If your intent is to encourage people to infringe to make money (perhaps by charging them membership fees, or giving a prize for the most popular link of the month), it could be established.
        
        In the middle, it will always be grey, it would really depend on the setup.
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        Anonymous Coward, 10 Dec 2015 @ 7:38pm
        
        Re: Re: Re: Re: Re: You were right until wonder how this can be used to dodge copyright:
        And then you were proven wrong. Doesn't it suck to be an idiot, average_joe?
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- Anonymous Coward, 20 Oct 2011 @ 6:57pm
  
  Re: You were right until wonder how this can be used to dodge copyright:
  There's just no way to regard that last paragraph as other than attempt to find a way around being charged with infringing.
  
  And your point is that if I link to a publisher's page, that I should be charged with infringing?
  
  After all, if linking is the same as publishing, then linking to even non-infringing content would be infringing.
  
  the goal with linking to infringing material isn't free speech but THEFT of copyrighted works
  
  Oh, I understand now. You believe that when you link to something, it ceases to exist! Sorry, but your understanding of how computers work is not correct. You need to stop watching Star Trek reruns - downloading something does not erase the original.
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- BearGriz72 (profile), 20 Oct 2011 @ 8:15pm
  
  Re: You were right until wonder how this can be used to dodge copyright:
  On a side note: I think OotB is a moron that should rot for abusing our intelligence.
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Blaine, 20 Oct 2011 @ 7:44am

I'm Confused...
How do you pronounce 'Crookes'?

Is it like Crook but with a silent 'e' or is it like Kook but with an 'r'?

I guess it doesn't matter, either way works.
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Anonymous Coward, 20 Oct 2011 @ 7:59am

If linking to infringing material shows 'intent'....
1. Find RIAA/MPAA links to external websites...
2. Alter target of links to be infringing material....
3. Sue...
4. Profit....

Am I doing it right? I think I took a pretty broad brush approach to showing why linking should be punished for the dirty immoral act that it is....
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- MM_Dandy (profile), 20 Oct 2011 @ 11:19am
  
  Re: If linking to infringing material shows 'intent'....
  Step 2 should be 'find links to infringing material.'
  
  Odds are good that they do.
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MM_Dandy (profile), 20 Oct 2011 @ 11:23am

Where does it end?
If I link to a site which links to another site which hosts infringing material, does that make me a pirate?
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Jon Noowtun, 20 Oct 2011 @ 5:12pm

This is a clear victory for free speech on the net! Which is why I fought so hard to win this lawsuit! I'm a huge believer in free speech!

Now if you'll excuse me, I have a ton of comments I need to delete off my web site because I don't think they have anything worthwhile to say...

www.pee2peenet.net
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- Anonymous Coward, 20 Oct 2011 @ 9:36pm
  
  Re:
  They have computers in preschool now?
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