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, 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.

Filed Under: canada, wayne crookes
Companies: google, myspace, wikipedia, yahoo

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  1. 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


    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


    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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