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Supreme Court of Canada Stands Up for the Internet: No Liability for Linking

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Wednesday October 19, 2011
The Supreme Court of Canada today issued its much anticipated ruling in Crookes v. Newton, a case that focused on the issue of liability for linking to allegedly defamatory content. The court provided a huge win for the Internet as it clearly understood the significance of linking to freedom of expression and the way the Internet functions by ruling that there is no liability for a mere hyperlink. The key quote from the majority, written by Justice Abella:

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

This is an enormous win for the Internet since it rightly recognizes that links are just digital references that should not be viewed as republication of the underlying content. As Abella states:

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.

Abella continues:

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.

Abella then recognizes the crucial role that linking plays to the dissemination of information on the Internet and to freedom of expression:

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. 

Finally, Abella concludes:

Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.  Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.  Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.  While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.

There are two additional opinions. Chief Justice McLachlan and Justice Fish emphasize that links could constitute publication if "read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to." This is slightly different from Abella's standard of repeating the defamatory content.  Justice Deschamps offers a third opinion that also stands by the position that a mere hyperlink is not defamatory, but focuses on a deliberate act to make the information available as well as the need for a third party to have received and understood defamatory information.

This decision is amongst the most important the Supreme Court has issued involving the Internet. The court again demonstrates that it recognizes the importance of the Internet for freedom of expression and for the need to promote the ability to use the technology to disseminate information. The court clearly understood both the importance of linking as well as the technology behind a link. The decision rightly places responsibility for defamatory speech where it belongs - with the person who posted the content.  There is still the ability to commence legal action against that person, but subjecting anyone that links to allegedly defamatory content to potential liability would have been very dangerous.

While the decision is focused on defamation, the court's recognition of the limits of links does raise some interesting questions about other areas of the law including copyright, where some have tried to argue that linking to allegedly infringing content should itself constitute an infringement. This case doesn't decide that issue, but it suggests that the court recognizes that there are important limits on liability for linking.

Update: Howard Knopf assesses the impact of this decision on Access Copyright's efforts tariff proposal that seeks compensation for linking to recommended or required readings. Knopf argues "If a link or hyperlink by itself does not constitute “publication” for defamation purposes, it is difficult to see how it could, by itself, constitute publication or reproduction or any other activity covered by the Copyright Act."
Comments (26)add comment

Chris Tindal said:

user-activated vs automatic
Michael, do you know what Justice Deschamps means when he says the court should consider "whether the hyperlink is user-activated or automatic?" What's an automatic link, an HTTP redirect?
October 19, 2011

bigcitylib said:

bigcitylib
I am trying to understand what happens in the case of obvious endorsement. Somebody publishes:

Geist is a criminal.

And then I write:

[link]This post[link]finally tells the truth about Geist.

...which links to the first. Am I off the hook? That seems a bit much.
October 19, 2011

Chris Tindal said:

bigcitylib
@bigcitylib I don't think there's precedent for that yet, but the judgements so far have suggested that in that situation you would not be off the hook. A link itself does not constitute republication of libel, but endorsement of the content of the link can.
October 19, 2011

Dan Grice said:

...
Abella and the majority over simplify the approach in favour of a blanket exemption, whereas McLachlin and Deschamps opinion correctly acknowledges the importance of context, that no two hyperlinks are the same, and that we are better to rely on defences such as innocent decimation and public interest. (or while not mentioned, anti-Slapp legislation)

The reality is that while the internet depends on hyperlinks, many hyperlink are explicit endorsements. SEO optimization relies on hyperlinks as well. A small blogspot article with some defamation may have no impact, never be read, until a popular site decides to post it.

Few hyperlinks serve as footnotes for merely offering a reference, with the exception of something like wikipedia. Mostly they are deliberate attempts to share information, to support or disagree with them.

This ruling opens the door for abuse by publishers, and those with popular sites to readily direct readers to defamation and ruin reputations with no recourse to the person whose reputation is ruined. The person writing to exact words could be judgement proof, out of jurisdiction or sufficiently hidden. (I could write a defamatory article using a proxy site to ensure I would never be found, link to it myself, and be practically untouchable). The benefit to the fabric to the internet by the decision is zilch. Unless the court had gone back to 1700 defamation law and got rid of the innocent decimation defence and recent public interest defences, there was never any risk of creating a legitimate defence.
October 19, 2011

bigcitylib said:

Bigcitylib
Chris, I am aware of one or two ongoing defamation cases where none of the defamatory material was repeated in the linking post. Nevertheless it was clear that the link was meant to damage the reputation of the person being defamed at the other end of the link. You're right, the earlier B.C. decision says here's where a link might be defamatory (endorsement), and here's where it would not be. Does the SCC ruling indeed replace that nuance with a "blanket exemption"?
October 19, 2011

DJ said:

bigcitylib
To be honest, if you did:

[link]This post[link]finally tells the truth about Geist.

You should be off the hook. What Justice Abella did state was that you are not the controller of the content at that link. What if the link presented a positive spin on Geist and you agreed with that. Meanwhile the original author changed his opinion and went 180 degrees from that. Should you be liable for linking to a page you thought echoed your opinions when the original author changed it?

I think what was meant was that if you did this:

Geist is a criminal and [link]this post[link]finally shows the truth.

Then you may be liable.
October 19, 2011

Sean Hunt said:

...
The ruling says "a hyperlink, by itself" cannot constitute defamation. This does not imply that context cannot, in conjunction with a hyperlink, constitute libel, or that a hyperlink could never be a contributing factor. It merely sets the bar high for someone to show that it does constitute libel.
October 19, 2011

bigcitylib said:

bigcitylib
Yes, DJ, but in the case where it is clear that such a thing has NOT occured: where it is absolutly clear that I am endorsing a pack of filthy lies at the other end of the link, but do not repeat them. Am I automatically off the hook?
October 19, 2011

Shawn said:

...
@bigcitylib: endorsements, like all reviews and critiques, are exempt from copyright.
October 19, 2011

Chris said:

...
I'm reading this portion "...Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker..." to mean that a cache system (eg: google's cache link that links to historic version of the content) would be considered a publisher and could also be held responsible for the content.

There was a comment by Chris Tindal above that talked about "automatic", perhaps there was more to the ruling that allows the cache systems to get out of being held responsible?
October 19, 2011

MikeB said:

...
Might this be a precedent that would be somewhat applicable to P2P sites? Unless someone knows better than I, most of those sites only supply a hyperlink (torrent, whatever) to the actual content and not the content itself.

I'm mostly referring to this statement "I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers."
October 19, 2011

Doug Webb said:

You are responsible for what you write, not what someone else writes
That is it in a nutshell for me.
October 19, 2011

Davegravy said:

Analogy
Hyperlinks are about as complicit in libel as ears are complicit in slander. Both provide access to the defamation in question, but neither are the defamation itself!
October 19, 2011

bigcitylib said:

bigcitylib@hotmail.com
Analogy,

What are the pre-Internet consequences of, for example, pointing to someone handing out pamphlets they have authored containing defamatory material and endorsing the contents of those pamphlets?
October 19, 2011

Dan Grice said:

...
Big City Lib, if you read the decision, Deschamps goes into the current law of defamation the strongest. For instance, at one point a library offering a book which contain defamation could be held liable as there was a broad definition of publishing. A golf club in which someone else posted a defamatory note, was liable once they read it and failed to remove it. On the flip side, the defence of innocent decimation protected most people from any sort of liability for others defamation that they had a role in.

While the whole court agreed Newton should not have been held liable, they did so for different reasons. McLachlin favoured an adoption or endorsement test, which would have only caught those knowingly spreading content. Deschamps favoured only making it actionable if one was making defamation "readily available" and "deliberately", and instead focussing on the free speech defences such as "fair comment" or "responsible communication of something in the public interest".

Abella focusses way to much on a control test. Yes, web content can change as it would be ridiculous to hold someone accountable for a changed website. The problem was, that was never an issue in this case since the alleged defamation was there before hand. The worst part, is that by failing to help develop a broader test (such as advocated by McLachlin), the next person who hyperlinks in a different way may have to go through this whole process again.

October 19, 2011

Tico said:

....
In Spain the exact same thing was ruled by a court, but as it happened with RojaDirecta.com the U.S. don't give and took the domain. It is about time the U.S. Supreme Court does the same and stops the domain seizing by DOJ/ICE without a proper legal case.
October 19, 2011

Rekrul said:

Doesn't matter
While the decision is focused on defamation, the court's recognition of the limits of links does raise some interesting questions about other areas of the law including copyright, where some have tried to argue that linking to allegedly infringing content should itself constitute an infringement. This case doesn't decide that issue, but it suggests that the court recognizes that there are important limits on liability for linking.

In the case of copyright, it really won't matter what Canadian law decides. The US will claim that such sites violate US laws and try to get the owners extradited to the US to stand trial. Like they're trying to do with the British admin of the TVShack site.
October 20, 2011

Napalm said:

...
@Rekrul: "The US will claim that such sites violate US laws and try to get the owners extradited to the US to stand trial."

Eventually we'll have "The Great Firewall". Built by the rest of the world, to make by default all sites unavailable to US.

October 20, 2011

gmerrick said:

.com and .org domains
My church had a .com url for its website. I explained to our pastor what the DOJ/ICE was doing and the fact that a .ca domain would be more appropriate for our church. The changes were made recently to have the .com auto forward to our .ca domain. I try and explain this to all folks I come across that have a .com/.org website and encourage them to switch to a .ca
October 20, 2011

Chris C. said:

...
This is great news. Finally some "common sense" is emerging out of this morass.

The way I see it, this ruling gives me, a professional and an author, great encouragement for its implications on Freedom of Speech.

In the past decade or so, people like myself have grown increasingly weary that giving references, which is a fundamental principle behind the impartiality of the scientific method, was akin to endorsing the referenced author's opinion and give automatic exposure to liability. This ruling states that it does not.

In other words, when I form _A_ conclusion based on references, it is NOT necessarily an 'opinion' but a 'statement based in fact' so that the intended reader may draw his or her _OWN_ conclusions. Or, in the narrow context of defamation explored here, I should not necessarily be held responsible for defaming a person if I merely stated that other persons hold these defamatory opinions. Like Noam Chomsky said in the famous case of French Holocaust denier Robert Faurisson (please excuse me if I don't quote verbatim), defending a person's right to freedom of speech does not mean endorsing that person's opinion.

Even if this ruling does not give total freedom of speech, as was rightfully noted, it is nevertheless a great victory against despotism. But this is just a start and we need many more victories like this one to turn the rising tide of fascism we are experiencing with the new laws our governments are ramming down out throats, such as the very worrisome Bill C-32, and one cannot help but wonder if the drastic population control regulations this majority government is trying to pass are not the real reasons why this government feels it needs to build new prisons.
October 20, 2011

Napalm said:

...
Here's a quick BS test. Suppose that I create a libelous website. Apart from the libelous content itself, I include 5 links back to my own site. Should I be charged with 6 counts of libel?
October 21, 2011

Napalm said:

...
And another BS test. Suppose that instead of creating here a clickable hyperlink to www.libel.com, I just post a non-clickable text saying "hey guys and BTW there's this great www.libel.com site with additional info". Where you'll have to manually copy and paste the website name in your browser address field in order to view it.

Why would the clickable hyperlink would be treated any different than it's plain text counterpart? (as all that a hyperlink does is nothing but automating the copy and paste process).

Once we established that, would the mention of a libelous site name constitute libel too?
October 21, 2011

Napalm said:

rofl
and btw Michael's blog transformed automatically the site's name into a hyperlink... now we're getting really libelous lol....
October 21, 2011

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