Canadian Supreme Court Says No Liability For Linking To Defamatory Content

Defamation

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