Canadian Supreme Court To Hear Case Over Liability For Linking To Defamatory Information

from the linkety-link dept

You may recall that a few years back, Canadian politician Wayne Crookes started suing a whole bunch of sites, including Wikipedia, Google, Yahoo and MySpace, just because of postings on those sites that Crookes felt were libelous. Whether or not the comments actually were defamatory was a big open question, but a bigger issue was why he was suing the service providers, rather than those actually responsible for the comments. Some of those lawsuits got tossed out on a jurisdictional technicality, but Crookes then also sued some others, claiming libel for just linking to a site that was potentially libelous as well. One of those sued was Jon Newton, the operator of P2Pnet.net, a site that many of you read. Newton had linked to the stories in question, but did not repeat was written in them or offer any commentary -- and yet Crookes claimed that just the links were defamatory.

Thankfully, both the district court and the appeals court said that just linking was not defamatory, but the reasoning was a bit odd, and left some potential issue open. Now, as a bunch of folks have submitted, the Canadian Supreme Court is gearing up to take on the issue. There are really two questions here: whether or not the initial link is defamation, and secondarily, whether or not it becomes defamation if you refuse to take down the link after being alerted to it being defamatory.

In the US, Section 230 of the CDA protects website publishers in both cases. In Canada, the law is not at all clear on this issue, and there's a very real threat of a pretty massive chilling effect if the Supreme Court decides that linking (or even refusing to take down a link) can constitute defamation. Hopefully, the Supreme Court agrees that merely linking should never be seen as defamation -- and preferably, the Canadian Parliament makes this doubly clear by putting in place some basic safe harbors as well.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    NAMELESS.ONE, Apr 5th, 2010 @ 9:56am

    summary

    this is about rights

    its about YOU taking responsibility for what you click on
    end of story and so far the courts have it right saying

    ITS YOUR RESPONSIBILITY

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    :Lobo Santo (profile), Apr 5th, 2010 @ 10:03am

    Re: summary

    Realistically, your rights end at the point where you can no longer personally enforce them. Any "rights" beyond that point are sweet illusions, entirely false.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    ChurchHatesTucker (profile), Apr 5th, 2010 @ 10:10am

    Re: summary

    What this is about is making it criminal to say, "There's a crackhouse on my block."

    Great for politicians, problematic if you live on that block.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Apr 5th, 2010 @ 10:45am

    So if the court finds that linking to defamatory information is defamatory, and then mentions the defamatory information in the ruling, then the court is being defamatory. Fun.

     

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  5.  
    identicon
    Anonymous Coward, Apr 5th, 2010 @ 11:46am

    no 230 protections in canada there are laws against hate speech and supporting it. 230 would be too broad.

     

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  6.  
    identicon
    Katie, Apr 5th, 2010 @ 11:49am

    Where will it end?

    If the court rules in favor of Crookes, does that mean that TechDirt can be sued for linking to P2Pnet, which linked to the "defamatory" material? Where is the line going to be drawn here?

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Apr 5th, 2010 @ 12:30pm

    How exactly are they interpreting links in this case? Are they seeing links as some sort of compulsory thing (a page has a link on it; you must click it)?

    From my understanding, when you GET a page on the net, the server sends you some plain text (and other crap) which your browser then interprets. Posting a "link" to defamatory content is just putting a URL on your page. It's not as if the content of the page is on your page.

    So, as CHT said, is it just like posting a sign saying "there is a crackhouse at address x"? How is the linker doing anything illegal? And furthermore, if they just get rid of the crackhouse, wouldn't all the "links" become invalid?

    Unless of course, it is illegal to take down the "defamatory" comments and they're trying to do an end-run around the system.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Apr 5th, 2010 @ 1:22pm

    Re:

    Only in TAM-fantasy-world.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Apr 5th, 2010 @ 1:24pm

    Re: Re:

    hi mike.

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    Mike Masnick (profile), Apr 5th, 2010 @ 1:38pm

    Re: Re: Re:

    hi mike.

    I do not post anonymously. That was not me. I'll stand behind my words every time. Always have. Perhaps it's time you realized that it's pretty obvious who you are even if you don't see your IP address. Your language choices make it clear.

     

    reply to this | link to this | view in thread ]

  11.  

    Linking To Defamatory Information

    230(c) is certainly a slippery slope. But let's cut tho the chase (Assuming the destination of the links were in fact libelous and I have not researched it)

    (1) Libel is a personal injury
    (2) When libelous materials are read the victim suffers loss (of reputation) which might be valued at $X
    (3) If the victim suffers loss, deductive reasoning suggests that the author "took" from the subject
    (4) A third party who purposefully brings the material to the attention to others, contributes to the subject suffering further loss valued at $Y
    (5) If the 3rd party had not pointed out the damaging materials, the victim's loss would be only $X
    (6) The third party "took" $Y from the victim

    I know, I know, this won't stand up in court of law, but a court equity by its very definition should look closely at this. Naturally, the 3rd party's liability should be reduced if malice was not a factor.

    An associate and I have been going back and forward on these issues. Here is some of the dialogue:

    If we read 230(c) and neglect to read 230(d), they might well think that 230 gives blanket immunity, but what about Title 18?. Many civil attorneys on the state level are not so familiar with federal criminal law and the strong civil provisions.

    Typically, in a fraud case the defendant will do the following:

    1. engage in a dishonest scheme or action

    which

    2. induces the victim to give up money or other property

    The difference with this libel is that the defendant commits a fraud on the public in order to destroy property. There is no intention to get property themselves.
    You can make analogies to arson, vandalism, and so on.

    That is how people often see it. But you have to read the words of the statute itself.

    1343 reads...

    Whoever, having devised or intending to devise any scheme or
    artifice to defraud, or for obtaining money or property by means of
    false or fraudulent pretenses, representations, or promises,
    transmits or causes to be transmitted by means of wire, radio, or
    television communication in interstate or foreign commerce, any
    writings, signs, signals, pictures, or sounds for the purpose of
    executing such scheme or artifice, shall be fined under this title
    or imprisoned not more than 20 years, or both...


    Two things are going on there. The bad activity can be either:

    1. devised or intending to devise any scheme or artifice to defraud

    or

    2. devised or intending to devise any scheme or artifice...for obtaining money or property by means of
    false or fraudulent pretenses, representations, or promises..

    I would be quite comfortable defining a hyperlink to defamatory material as "any writings, signs, signals"

    Black's Law Dictionary defines defraud as:
    To make a representation of an existing material fact, knowing it to be false or making it recklessly without regard to whether it is true or false, intending one to rely and under circumstances in which such person does rely to his damage. To practice fraud; to cheat or trick. To deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice.

    Normally, then, fraud is designed to trick you out of your property. The question is when a third person is involved.

    As a libel victim, your property is your goodwill and reputation. The damage comes when a third person is deceived, and therefore refuses to do business with you.

    As a result of a false representation, that person has deprived you of the profitable association with others. You as the victim were not tricked, because you know that the statement is false. Your customer was tricked, however. But for the false statements, unspecified profitable associations were damaged. In some cases, you will know precisely who stopped doing business with you.

    To me, adding a 3rd person does not reduce the fraud, but broadens it. One person is tricked, and another is harmed. The actus reus is there: someone was tricked. The damage is there: reputation and goodwill are harmed. The question is whether the person tricked must be the person harmed.

    I really don't think a court would get hung up on this. Instead of focusing on the word fraud, one can focus on scheme. It is in the nature of a fraudulent scheme to take property from a person, no matter how complicated the scheme is.

    Also, I don't think it matters if the liar doesn't keep--or even receive-- the property. It is sufficient that the property was deprived. It is as if a person got your money fraudulently and then burned it all up. Destruction of property isa taking of property.

    Again, in Black's Law Dictionary (1986), the word destroy is defined,

    "Term is susceptible of applications in a variety of contexts, but in general, it means to ruin completely and may include
    a taking."

    So, to destroy something may include a taking.

    I would argue that to destroy a person's goodwill or reputation is to take property from that person. And to do so by means of a false statement is to defraud. And to defraud by use of the Internet is to commit wire fraud (18 USC 1343).

    18 USC 1961(1) defines what racketeering activities are.

    18 USC 1343 is listed as a racketeering activity.

    But you have to do it more than once to qualify for RICO. 1962(5).

    18 USC 1964(c) is the honey pot of civil RICO:

    (c) Any person injured in his business or property by reason of a
    violation of section 1962 of this chapter may sue therefor in any
    appropriate United States district court and shall recover
    threefold the damages he sustains and the cost of the suit,
    including a reasonable attorney's fee...

     

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  12.  
    identicon
    Jordan, Apr 5th, 2010 @ 2:27pm

    In all seriousness, people are way too uptight about their personal reputation. Anybody can say anything about anybody on the internet anywhere at anytime. Ain't nothing you can do about it.

    So why not just live your life as best you can and treat other people with respect so they'll always respect you in return and won't believe anything negative they hear about you.


    PS: If even linking to defamatory information is illegal.....

    DirtyPhonebook.com

    ...then I just made TechDirt break the law. :)

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    NAMELESS.ONE, Apr 5th, 2010 @ 2:29pm

    @2 and then @11

    A)come here and tell me that
    B) HUH , so your saying i dont have a right to cross the street , i have to make sure no one wants to sue me cause they THINK that at that time a day no one should cross the street cause it is wrong? OR
    That i don't have a brain and can't make choices myself so i must become a drone and let you and the govt do everything for me. YEA FUCKIGN RIGHT.

    FREEDOM is not a thing it is a state of being and mind. IF YOU want not to be free goto china or iraq or north korea.

    ALSO lets break up what he says.
    basically using large words again to befuddle andmake hmself seem smart.

    "Realistically, your rights end at the point where you can no longer personally enforce them."

    NO my rights are perpetual and always exist. IF you do not have rights of any kind i gather your living in Guantanamo Bay? My rights dont stop suddenly or any time. Even prisoners in Canada have rights to say vote as an example.

    "Any "rights" beyond that point are sweet illusions, entirely false."

    In combination with the above its hard to understand exactly wtf your talking about , but i assume you mean, that someone has taken rights away form me and i no longer have them in what sense is this regarding the article ?
    NO IDEA, at this point the courts have affirmed sanity here that it is your responsibility to go to the link and thus INFORM yourself of the links contents, bad or good ITS your choice to cross the street if the light is red also in canada, ( we do not have jay walking laws on the books )
    the lights are guides and while america that needs be spoon fed and lawed out the yin yang most people here also think its illegal and your some bad ass crossing at a red light when it is not.
    ( laws states tha as long as you do not impede traffic that has the right of way you are not in violation of law - wow thats common sense for ya)
    Once again this user spills out weird stuff and it makes little to no sense.

    at 11 YOU do realize that linking laws are hugely different then in your referenced USA law. For instance i can and have for 16 years hosted a hacker website with stuff that i can not in the USA. I have recently looked over slander and defamtion laws as well they are far differant then your laws.

    Take this into consideration when posting like YOUR law is our law.

    @6

    in canada we have some interestign legal laws for lawsuits
    example
    if you got bad milk form macs milk ( btw they always have had good milk purely an exmaple not to mean bad in any way )

    and it was discovered that the company sending the mlk was sending it bad, in hte past you would sue macs milk , then they would sue the company that sold htem the milk, thus doubling the systems overlap for essentially the same thing.
    the newer laws made a decade ago mean that ina suit you can go right to the source and sue the starter of the link so no TECH dirt would not directly be liable for just linking to johns article but may be forced to close the link and they could just sue john's p2pnet.

    @7 by saying there is a crack house on the street your not identifying the actual address and thus are putting a negative on every house in the area , now get specific with proof and the police will raid it else if this gets struck down your going to have to shut up.

    i think this would put a huge crimp into crime stoppers ability to function now that i think of it.

    Also @7 don't expect a 70 year old bunch a judges to understand all the stuff you just said about the meat and bones there more concerned with the the cause and affect and what it means to not only p2pnets rights but crooke's rights.

    and last i checked if your not anonymous and make such defamtory comments on purpose and no tin jest tha too is still illegal.

    What's interesting is not that crooke is disputing the contents of the link but the linking itself.
    Makes yea wonder if its really defamatory.

    If its in other jurisdiction that has lax laws then perhaps he could and should be able to get equal ability to defend his self. These are a few things i am sure the justices will look at, and there are more angles they may see i do not.

    I am not spending a lot a time here as i said.
    IF i say mike is a jerkoff and post a link to some place that says so, and you already know hes not or dont believe it and go and its all non sense with no proof , WHOSE the bigger idiot that believes the crap, the justice that orders the link removed or the person that CHOOSE TO GO and read that gossip and hersay.

    p.s. mikes a great guy of course and this was meant to get attention ....yea tha never happens also does it...

     

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  14.  
    identicon
    Anonymous Coward, Apr 5th, 2010 @ 5:56pm

    Re: Re: Re: Re:

    hi mike maybe you should learn what anonymous means. too bad you got caught.

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    Mike Masnick (profile), Apr 5th, 2010 @ 7:14pm

    Re: Re: Re: Re: Re:

    hi mike maybe you should learn what anonymous means. too bad you got caught.


    Uh, what? Once again, I will always comment under my own name. And yes, I know exactly what anonymous means. But when you reveal who you are by your own statements, that is not me revealing anything. Besides, you clearly stated in the past that you had no problem with me revealing any of the information about you, including your IP address.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Any Mouse, Apr 5th, 2010 @ 11:07pm

    Re: Linking To Defamatory Information

    I would argue that your rather wordy response to this article bypasses the issue at hand (since nothing you've said seems at all to discuss linking, as such). I submit that linking is not at all defamatory. This would be akin to suing a news stand for selling a newspaper that contains a defamatory article. Common sense says that even if the seller knew, or had reason to know, that the article in question was damaging that they had no personal part in the act of defamation, and thus carry no liability for the actions of others. But that's common sense, which has no place in law, right?

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Apr 6th, 2010 @ 6:08am

    Re: Re: Re: Re: Re: Re:

    you did it again. you are breaking the anonymous barrier with your comments. you just got caught again.

     

    reply to this | link to this | view in thread ]


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