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The Supreme Court of Canada struck a blow for internet free speech.
The case was widely-followed, with intervention from associations of publishers, lawyers, writers, and human rights group PEN Canada.
A majority of the Court held that a hyperlink is not defamatory. The ruling was narrow insofar as the Court unanimously determined that publication had not occurred.
But the portion of the decision which is drawing the most attention is the 6-3 finding that the inclusion of hyperlinks in the article did not give rise to a cause of action for defamation against the author who included the hyperlinks:
Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.
Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. 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. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.
Wayne Crooks & West Coast Title Search LTD v. John Newton
Supreme Court of Canada, 2011 SCC 47, October 19, 2011
|Crookes v. Newton 19 OCT 2011.pdf||159.46 KB|