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Monday October 24, 2011 |
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.
crookes, defamation, free speech, newton Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday October 24, 2011 |
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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.
crookes, defamation, linking, newton, scc Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday October 19, 2011 |
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Thursday April 01, 2010 |
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The Supreme Court of Canada today granted leave to appeal in the Crookes v. Newton case, which involves alleged online defamation and the liability for linking to a defamatory article. Update: Coverage from Canwest on the implications of the case.
crookes, defamation, newton Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareThursday April 01, 2010 |
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Wednesday September 16, 2009 |
The B.C. Court of Appeal has issued an important new ruling on the prospect of liability for linking to allegedly defamatory content. Crookes v. Newton involved Wayne Crookes, who has filed several Internet defamation suits (including one against me) and Jon Newton, publisher of P2Pnet.net. A divided court upheld a lower court ruling that there was no publication in merely linking to content and therefore no liability. The majority of the court ruled:
there is, in my view, no substantial difference between providing a web address and a mere hyperlink. Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.
There remain several outstanding cases before the B.C. courts involving Internet-based defamation. crookes, defamation, internet law, linking liability, newton Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday September 16, 2009 |
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