[liberationtech] Canada / Internet links not libel, top court rules

[Robert Guerra]

Copy of the decision is available via the CBC link mentioned below, as well
as via the court website -
http://scc.lexum.org/en/2011/2011scc47/2011scc47.html
regards
Robert

Internet links not libel, top court rules
By Meagan Fitzpatrick, CBC News <http://www.cbc.ca/news/credit.html>
Posted: Oct 19, 2011 9:53 AM ET  Last Updated: Oct 19, 2011 11:47 AM
ET

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

*The Supreme Court of Canada ruled that hyperlinking to libellous material
does not constitute publishing the material itself. *
*
*

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, the court 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.
 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.
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