Appeared in the Toronto Star on October 23, 2011 as Supreme Court Stands Up for the Internet

The Supreme Court of Canada last week issued its much anticipated ruling on the potential liability for linking to allegedly defamatory content on the Internet. The court provided a huge win for the Internet as it clearly understood the “link” between freedom of expression and Internet linking by providing strong protections for all Internet users that link to online content.

The issue before the court was whether links to content should be viewed as republication of that content for the purposes of defamation law. P2Pnet.net, a B.C.-based website, featured links to another website that contained the contentious content (whether the content was actually defamatory was never proven in court).  The plaintiff argued that linking to the offending content should be enough to hold both the original poster and the linker liable.

The Supreme Court unanimously disagreed, upholding a B.C. Court of Appeal decision dismissing the lawsuit. The majority of the Supreme Court supported reasons from Justice Rosalie Abella, who concluded “a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers.”

The decision included three standards for when a link could raise liability issues. The one adopted by the majority of the court was the highest threshold articulated by Abella, who found that only links that repeat the defamatory content should be considered published by the linker. Two concurring opinions argued for lower standards including (1) a link that contains text endorsing or adopting the defamatory content or (2) a deliberate act to make the information readily available.

While the immediate implications of the case relate specifically to defamation and the Internet, reverberations are likely to be far broader. First, the court has sent a strong signal that it is willing to engage with new technologies in an effort to understand how they function and their wider effects. In assessing the importance of linking to the Internet, Abella concluded that they “are an indispensable part of its operation” and that “the Internet cannot, in short, provide access to information without hyperlinks.”

Second, the court’s view on Internet linking should extend beyond just defamation. For example, Abella concludes “making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.” That analysis has obvious implications for copyright issues, where some groups have argued that linking to copyright content could raise payment or liability issues (if the content is unauthorized). Given the determination that linking is not publication of the content, it seems unlikely that a link could be viewed as creating a copy for the purposes of the Copyright Act.

Third – and most importantly – the court recognizes that the Internet is a critical tool for freedom of expression. It states that creating liability for linking “would have the effect of seriously restricting the flow of information and, as a result, freedom of expression”, adding that the effect could be “devastating.”

The court’s language is consistent with the recent report from the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, who earlier this year was highly critical of policies that block access to content, threaten to cut off Internet access due to allegations of copyright infringement, and fail to safeguard online privacy.

Given the connection between freedom of expression and the Internet, the Supreme Court  has signaled that it will look with great skepticism at laws that could have a chilling effect on the ability for Canadians to fully participate online.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.