Canada's Supreme Court Protects Hyperlinkers

10/20/2011 4:10:00 AM, Darryl Greer
     (CN) - Canada's Supreme Court ruled that hyperlinks on websites the link to defamatory content do not constitute publication, shielding content sharers from liability, should they inadvertently post links to libelous material.

     The unanimous ruling stemmed from a lawsuit from Wayne Crooks, who owns a title search company, against blogger Jon Newton, who Crooks said included links in online postings to defamatory material about Crooks and the Green Party of Canada.
     The Supreme Court found that linking to or referring to defamatory material does not mean that the links or references are defamatory in and of themselves.
     "Communicating something is very different from merely communicating that something exists or where it exists," the 72-page ruling states. "The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not. Even where the goal of the person referring to a defamatory publication is to expand that publication's audience, his or her participation is merely ancillary to that of the initial publisher: with or without the reference, the allegedly defamatory information has already been made available to the public by the initial publisher or publishers' acts."
     The court said that hyperlinks are references to content that the person posting the link had no involvement in creating, which in the United States insulates people from potential liability.
     "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," the ruling states.
     The justices found that hyperlinks are a widely used and essential facet of the Internet itself, facilitating access to information, as explained by Yale Law School's Anjali Dalal in "Protecting Hyperlinks and Preserving First Amendment Values on the Internet."
     Given Dalal's explanation, the court found that limiting the use of hyperlinks would damage the free flow of information and freedom of expression.
     "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 ruling states. "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 best remedy for plaintiffs in defamation cases is to go after the person or people responsible who created and controlled the impugned conduct, rather than suing people who merely link to the content, the court found.
     Although the justices agreed to toss Crooks' appeal, some justices offered differing views about how a hyperlink may constitute repetition of defamatory content.
     Chief Justice Beverley McLachlin and Justice Morris Fish found that a hyperlink may be defamatory in certain cases.
     "Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content," the ruling states. (Emphasis in original.) "The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent web site that later becomes defamatory would not be liable."
     Interveners in the case included the Canadian Civil Liberties Association, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, NetCoalition, the British Columbia Civil Liberties Association, the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, the Writers' Union of Canada, the Professional Writers Association of Canada, PEN Canada and the Canadian Publishers' Council. Attachment