Canadian Supreme Court Says No Liability For Linking To Defamatory Content

from the link-away dept

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.

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

Canadian Appeals Court Says Linking To A Site Is Not Defamation

from the phew dept

Way back in 2007, we wrote about a Canadian business man/politician, Wayne Crookes, who was suing a bunch of websites, including Google, Yahoo, MySpace and Wikipedia, because he was upset about what some people had posted about him on those sites, claiming it was defamatory. We found it odd that he was suing these companies, rather than the individuals who supposedly posted defamatory material (oddly, many of the stories that he claimed were defamatory were about him supposedly filing defamation lawsuits!). In some cases, it reached ridiculous levels, such as the fact that the same guy also sued Jon Newton, the operator of P2Pnet.net for merely linking to text that Crookes considered defamatory.

It was troubling enough to sue a company that was hosting a conversation where someone may have said something defamatory, but to take it to another level, where someone merely linking to the actual text as a part of reporting on it was also accused of defamation could have a serious chilling effect on free speech and open communications in Canada. Luckily, last year, a Canadian court found that merely linking to potentially defamatory content is not defamatory. Apparently that ruling was appealed... and the appeals court has agreed that linking to defamatory content is not, itself, defamatory. This is a big win for free expression in Canada. The case could still be appealed, and some are noting that the appeals court ruling still had some problems. There was a dissenting judge who seemed to think that because people may have clicked on the link, just putting up a link was the equivalent of publishing the content on the other side of the link (yikes!). That last link also discusses some other serious problems with libel law in Canada (similar in some ways to the problems in the UK), which is in desperate need of a modern update.

Filed Under: canada, defamation, jon newton, linking, wayne crookes

Canadian Court Rules That Linking To Defamatory Articles Isn't Defamatory

from the victory-for-free-speech-online dept

You may recall the story of Wayne Crookes, a Canadian businessman who is active in the Green Party in Canada. In 2007, he sued Google, Yahoo, Myspace, Wikipedia and some other sites, claiming that all were liable for content that he found defamatory. 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.

In one case, Crookes sued the website P2PNet for just linking to the material that Crookes found libelous. It seemed like a huge stretch to say that merely linking to content (even if you grant that it was libelous) is also libel. And, the good news is that a court has now agreed. It has sided with Jon Newton, the operator of P2PNet in noting that simply linking to libelous material is not, in itself, libelous. The ruling does note that if the link text had been libelous, that might be a different story -- but just linking to the text as part of a discussion about the lawsuits is hardly libelous. This is definitely a huge win for free speech in Canada -- though, Canada could take a big step forward in updating its defamation laws to make it clear that the liability for libel should be on those who actually were libelous, rather than those who host it or point to it.

Filed Under: canada, defamation, free speech, jon newton, libel, linking, p2pnet, wayne crookes