Linking isn’t publishing, Supreme Court says
Grant Buckler tells us why the latest Supreme Court ruling on linking, publishing and defamation is good for media outlets and independent bloggers alike. Also check out Dean Jobb's post for more analysis on the ruling.
Grant Buckler tells us why the latest Supreme Court ruling on linking, publishing and defamation is good for media outlets and independent bloggers alike. Also check out Dean Jobb's post for more analysis on the ruling.
A Supreme Court of Canada ruling that hyperlinks to websites containing defamatory content do not make the person posting the links liable for defamation or libel looks like good news for major media outlets and independent bloggers alike.
The court unanimously dismissed an appeal of a British Columbia Court of Appeal ruling. Wayne Crookes, owner of West Coast Title Search Ltd., had sued Jon Newton, a blogger, claiming that by posting links on his blog to online material that Crookes alleged was defamatory, Newton was himself liable for defamation.
Writing for six of the nine judges, Justice Rosalie Abella concluded that “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.”
Chief Justice Beverly McLachlin and Justice Morris Fish agreed with the substance of the majority opinion but suggested that if a link were presented in a context that suggested support or endorsement of the defamatory material, that might be defamation in itself. And Justice Marie Deschamps suggested that a link might amount to publication if it could be proven to have made defamatory material readily available and brought it to others’ knowledge, but said that couldn’t be proven in this case.
Despite the suggestion that implied endorsement might qualify as defamation, “I do not think the media could have done much better,” said Peter Jacobsen, a partner with Bersenas Jacobsen Chouest Thomson Blackburn in Toronto and member of the board of Canadian Journalists for Free Expression (CJFE).
The ruling “gives a very large measure of protection to bloggers and others,” agreed Barry Sookman, partner with law firm McCarthy Tetrault and an authority on information technology and intellectual property law. “The only time you’re liable is if you repeat the defamation,” Sookman told J-Source.
[node:ad]Jacobsen said he was encouraged by the court’s comment on the importance of protecting freedom of expression online. Abella wrote that “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.“
Sookman called the decision “a very strong endorsement for values that foster freedom of expression on the internet.”
Quoted in The Globe and Mail, Dean Jobb, a journalism professor at University of King’s College and author of Media Law for Canadian Journalists, said the ruling protects a core purpose of the internet: the ability of users to share links to material posted online.
Cara Zwibel, a representative of the Canadian Civil Liberties Association, told CBC News that the court “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."
CJFE said in a statement that it “welcomes this incredibly important step in defining and protecting free expression online in Canada.”
And commenting on the ruling on his own blog, Jon Newton wrote that “the ability to refer to something by linking to it is as fundamental to the Internet – to the newest media – as computers themselves…. For millions of other Canadians the internet means freedom — freedom to communicate with each other, freedom to learn, freedom to share, freedom to explore, freedom to say what they want, when they want, without fear.”
Grant Buckler is a retired freelance journalist and a volunteer with Canadian Journalists for Free Expression and lives in Kingston, Ont.