You may now exhale, Canadian journalists, bloggers, and Twitter users. Canada's Supreme Court has unanimously decided that posting a hyperlink to an allegedly defamatory article does not constitute defamation itself.
"I would conclude that a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers," opined Supreme Court Justice Rosalie Silberman Abella, speaking for the panel reviewing the matter of Crookes versus Newton.
The court's decision adds that "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."
It's actually embedded
The case in question involves Jon Newton, who runs a site called p2pnet that focuses on file-sharing-related matters. Five years ago he wrote an essay about a dispute involving local Vancouver businessman Wayne Crookes, who sued a former associate for publishing articles online that Crookes found defamatory.
Newton's online prose included hyperlinks to the allegedly harmful content. Crookes insisted that Newton remove them, and when the latter refused to do so, Crookes sued Newton as well. Arguing before the trial judge and then an appellate court, Crookes' attorneys repeatedly disputed the commonly held notion that hyperlinks can be understood as footnotes—pointing to but not publishing the material in question.
"The creation of a hyperlink actually embeds the referred to material in the primary article," Crookes' claimed in his appeal before the Supreme Court. "The utilization of a hyperlink, if it is analogous at all to the footnote in written material or a card index in a library, would be analogous only if the material accessed by the hyperlink were stapled to the written material or card index."
Holy hexagonals
Both lower courts rejected this unique logic. Now Canada's Supreme Court has as well. "Hyperlinks are, in essence, references," Abella explained:
Both communicate that something exists, but do not, by themselves, communicate its content. And 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—it expresses no opinion, nor does it have any control over, the content to which it refers.
Obviously this is a hugely significant case for any journalist or scholar who posts links to the content about which they write. Ditto for tweets, Facebook posts, blog entries, or any Internet venue in which hyperlinks are essential. The Supreme Court's ruling made it clear that the justices understood this.
The Internet cannot "provide access to information without hyperlinks," the court insisted:
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 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. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.
Reactions
The Supreme Court decision has provoked much joy among Canadian free speech lovers. The ruling "importantly permits internet users to continue sharing links without looking over their shoulders," declared the Canadian Internet Policy and Public Interest Clinic shortly after the decision. The CIPPIC intervened on Newton's behalf.
Ottawa law professor Michael Geist notes that several of the panelists posted slightly modified supporting opinions. One justice observed that a link could be understood as publication if "read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to." (Presumably some hyperlinked sentence such as read the sordid truth about so-and-so here would fall under that rubric).
But, Geist adds, the ruling "is amongst the most important the Supreme Court has issued involving the Internet. The decision rightly places responsibility for defamatory speech where it belongs—with the person who posted the content."
Needless to say, defendant Newton is more than a little bit relieved that the square archaic peg in question no longer hangs over his head.
"'Awesome' is a word much-over used in the 21st digital century. But in this instance, it can be accurately applied," his latest blog post proclaims. "Will online freedom of speech survive in Canada? Now we know."
Listing image by Photograph by Antony Pranata
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