Libel via Hyperlink -- Case heard in Supreme Court of Canada

December 8, 2010

CBC News reports, 7 Dec 2010:

http://www.cbc.ca/technology/story/2010/12/07/hyperlink-supreme-court-defamation-libel.html

If a person can be found to have defamed another just by including a hyperlink to a defamatory website, freedom of expression is at risk, Canada's top court heard Tuesday.

"Hyperlinks are vital to the expression and use of the internet," said Harvey Delaney, one of two lawyers representing the respondent in the case, B.C. resident Jon Newton.

Delaney said the "cost to expression would be too great" if internet users were held responsible for all material they simply linked to.

The Supreme Court of Canada has reserved its judgment on the case, which was brought forward by Wayne Crookes, a former Green Party campaign manager, and his company, Appellant West Coast Title Search Ltd.

Crookes is seeking damages from Newton for defamation over links that appeared in an article titled "Free Speech in Canada" posted on Newton's website [...] on July 18, 2006.

Crookes alleges the hyperlinked aritcles were defamatory. Crookes further claims that by hyperlinking to them and refusing to remove the links when advised they were defamatory, Newton was himself a publisher of the defamatory articles.

Crookes was granted leave by the nation's top court in April to appeal a British Columbia ruling that went against him in 2008.

"When you put a hyperlink in the text, it's part of the text," Crookes's lawyer, Donald Jordan, told the Supreme Court Tuesday.

He said that by linking to a website, you not only invite but encourage readers to visit the site.

Jordan's arguments raised concerns from Supreme Court Justice Louise Charron.

"It seems to me that if we accept the position you're putting forth, then no one should ever hyperlink," Charron said. "Maybe I'm a chicken, but I would not dare create a hyperlink because there might be some defamatory material, and I'll be stuck defending myself in court, and I cannot afford it … We're sentencing the hyperlink to death, it seems to me."

But Jordan countered that internet users should be responsible enough to review material and make a judgement before linking to it.

Daniel Burnett, who was representing Newton along with Delaney, said that Charron's concerns describe a "real fear or chill" that would be upon both ordinary citizens like Newton and the media business.

Economic risk to media

Robert Anderson, a lawyer representing print, broadcast and publishing industry groups acting as intervenors in the case, said hyperlinking is used by the media to both bring content to readers and to maintain their ranking in search engines. Half the traffic to newspaper and other media sites comes to the sites via Google.

"If hyperlinking is publication, it will have a serious impact on the ability of those industries to bring content to its readership and to maintain its economic survival," Anderson said.

Canadian media sites will no longer be able to compete, especially against American sites, he added, as hyperlinking is not considered publication in the U.S.

In Canada, links have not yet explicitly been categorized — either as publication or not publication. Doing so would require an act of Parliament, Jordan said.

In the meantime, he said, the media on the internet should behave as responsibly as they do when disseminating information in print and on the air.

Liability with explicit endorsement

Newton's lawyers acknowledged that there might be some circumstances when an internet author might explicitly endorse an article they link to and might therefore be liable. However, they said, the case before the Supreme Court does not fall into that category.

Civil liberties groups taking part as intervenors urged the Supreme Court to set out clear guidelines on when an internet user might be found to be a "publisher."

Wendy Matheson, a lawyer representing the Canadian Civil Liberties Association, argued that the only such circumstance should be when a person has actually produced the words himself and therefore meets the current definition of a publisher.

"Anything else will substantially impair the freedom of expression of ordinary people," she said, arguing that rules relating to context are too difficult for people to interpret.

Roy Millen, a lawyer for the B.C. Civil Liberties Association, said website creators should only be liable for hyperlinks if they knowingly and explicitly endorse the libelous statements on the hyperlinked site, and then only if it was proven that the statements were read as a result of the hyperlink.

A number of other lawyers in the case agreed that the latter proof of harm is important, and Netwon's lawyers argued that no such link had been made in Newton's case.

Supreme Court decisions are typically released six to eight months after a hearing.

March 14, 2011

Great reading, thanks for posting. Difficult to believe with a surname of Crookes, and going into politics, that he didn't have it changed.

Kubrickfan · March 15, 2011

What if the linked-to site has hyperlinks to other sites? Where does the responsibility end?

Unless the plaintiff can prove enough intent to overcome the burden of proof usually required of an tort such as libel, this is a no-brainer in my opinion.

MightyPen · March 15, 2011

I dunno... I can see the plaintiff's point.

Suppose you gave a seminar about a person, and then at the end of your talk you handed out to audience members some pamphlets published by somebody else that defamed that person. Aren't you responsible for the content of the material you've chosen to hand out? Have you not participated in defamation yourself?

Even if you just left the pamphlets on a table that people could grab on their way out, don't you have some responsibility for distributing the material? And if the subject contacted you, pointed out the defamation, but you continued to include the pamphlets on the seminar table despite your knowledge... have you not yourself participated in defamation?

The hyperlinks at the end of an online article are exactly like those pamphlets. That's certainly how I'd argue it.

March 15, 2011

Note that it is not just the simple act of including a hyperlink that is alleged to make the defendant liable for the publishing of the defamatory material which happens to be on the other end of the link.

Rather, it is the subsequent decision to refuse to remove the offending hyperlink that is alleged to be the act that places the responsibility and liability of a publisher upon the defendant for the defamatory material that is linked to:

... Crookes alleges the hyperlinked aritcles were defamatory. Crookes further claims that by hyperlinking to them and refusing to remove the links when advised they were defamatory, Newton was himself a publisher of the defamatory articles....

Phaedrus · March 15, 2011

Great reading, thanks for posting. Difficult to believe with a surname of Crookes, and going into politics, that he didn't have it changed.

Oh, I don't know about that... :)

http://en.wikipedia.org/wiki/Nominative_determinism

October 20, 2011

Meagan Fitzpatrick reports for CBC News, 19 Oct 2011:

http://www.cbc.ca/news/politics/story/2011/10/19/pol-scoc-hyperlink.html

Hyperlinking to defamatory material on the internet does not constitute publishing the defamatory material itself, the Supreme Court of Canada ruled Wednesday.

The ruling will alleviate fears that holding someone liable for how they use hyperlinks on websites, personal ones or others, could cast a chill on internet use.

The responsible use of the internet and how traditional defamation law applies to modern technologies were at issue in this case, which was watched closely by media organizations and civil liberties groups.

How someone can protect their reputation in the internet age when content is passed around with the quick click of a button was also considered in the case. On social media websites such as Facebook and Twitter, users often share links, and the court's ruling could have dramatically disrupted that function had it gone the other way.

In its unanimous decision to dismiss the case, the court's majority said a hyperlink, by itself, should never be considered "publication" of the content to which it refers. But that doesn't mean internet users shouldn't be careful about how they present links. The court says that if someone presents content from the hyperlinked material in a way that repeats the defamatory content, they can be considered publishers and are therefore at risk of being sued for defamation.

The court agreed with the arguments that applying the definition of publisher to someone who hyperlinks could have a chilling effect on internet use.

"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," Madam Justice Rosalie Abella wrote.

"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," the ruling said.

The court said hyperlinks are like footnootes in that they communicate that something exists but do not, by themselves, communicate its content. The person who wrote the secondary article may have no idea they were referenced, and, the person who wrote the primary article may have no idea if the material they linked to is changed at a later time.

The majority of judges agreed that although someone can facilitate the transfer of information by what he or she links to, an internet user who follows the link is leaving one source and moving to another. The creator of the words in the secondary article is the one publishing defamatory material, not the first author.

The Canadian Civil Liberties Association is pleased with the court's ruling. "The court I think tried to really recognize that a decision that went the other way might have curbed what people are willing to do on the internet and curb the usefulness of the internet," Cara Zwibel, a representative of the group, told CBC News.

The court struck the right balance between freedom of expression and protection of reputation, said Zwibel, adding that Facebook and Twitter users can continue to link to content without fear of being held responsible for it.

"A different decision would have had a much greater impact," she said.

B.C. dispute triggered case

The case was brought to the country's top court by British Columbia resident Wayne Crookes, a former Green Party campaign manager, and his company, West Coast Title Search Ltd.

Crookes was seeking damages from Jon Newton over links contained in an article that Newton wrote and posted on his own website in 2006.

Crookes said the article linked to another website that he said contained articles about him that were defamatory. Newton was asked to remove the links and he refused, prompting legal action by Crookes.

Newton's website did not reproduce any of the disputed material, nor make any comment about it.

Crookes's lawyer, Donald Jordan, argued that by creating the links, Newton was himself a publisher of the allegedly libellous material and that hyperlinks are part of the content of the primary article. By linking to a website, one is inviting and facilitating the reader to go to that website, it was argued.

Jordan said internet users should be responsible enough to review material and make a judgment before linking to it.

Newton's lawyers acknowledged in their defence that there may be circumstances when an internet author explicitly endorses an article they link to and in that case might be liable. But Newton's is not that kind of case, they said, and the court agreed Wednesday.

They argued that if a person can be found to have defamed another just by including a hyperlink to a defamatory website, freedom of expression is at risk.

Protecting reputation on the internet

While the Supreme Court ruling can be viewed as supportive of freedom of expression on the internet, the justices also say that freedom doesn't give people a licence to ruin reputations.

The internet has the capacity to endlessly replicate defamatory material and websites such as Facebook and Twitter mean everyone who uses them could potentially be considered a publisher.

Abella writes in the ruling, however, that allowing the publication rule to apply to hyperlinks would not ultimately protect reputation.

"If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content," the judgment reads.

Differing views from the judges

The ruling was unanimous in deciding to dismiss Crooke's appeal, but three of the judges offered their own opinions on the ruling.

Chief Justice Beverley McLachlin and Justice Morris Fish said that in their view, if the text around a hyperlink indicated adoption or endorsement of the content of the hyperlinked content, then the hyperlinker should be liable for the defamatory content.

Justice Marie Deschamps agreed that Newton's actions didn't amount to defamation but she disagreed with some of the arguments written by Abella. Deschamps said that excluding hyperlinks from the traditional concept of publication under defamation law risks favouring freedom of expression over one's reputation.

While she agrees with Abella that a plaintiff's best option is to go after the original creator of the content, Deschamps said that's not always possible especially when it's so easy to be anonymous on the internet.

"If no remedy exists against 'mere' hyperlinkers, persons defamed online may in many cases not be able to protect their reputations," she writes.

Deschamps says courts should take an approach that focuses on how a hyperlink makes defamatory information available rather than exclude all of them from the scope of current defamation laws.

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Libel via Hyperlink -- Case heard in Supreme Court of Canada

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