Hyperlink Responsibility on Trial

by Jordan Richardson on December 9, 2010

The Supreme Court of Canada is currently hearing a case that could change the way we use the internet in this country. More specifically, the case as brought forward by Wayne Crookes and his company could impact the way hyperlinks are used.

First, a bit of background. Crookes is the operator of a Vancouver-based title search company. He also was a former Green Party organizer. Crookes alleges that he was “defamed” in several 2005 internet articles by Jon Newton. The kicker, however, is that Newton didn’t write the articles; he linked to them on his website. Newton’s website is p2p.net, a site that identifies itself as “the first internet web page to carry daily, frequently updated news, stories, features and commentaries on digital media, distributed computing and associated technologies and events which haven’t been spun, filtered and pre-digested by vested corporate interests.”

One of the pieces in question is a piece entitled “Free Speech in Canada.” Newton wrote that article and in it he linked to another article that apparently “defamed” Crookes. Crookes’ argument essentially says that Newton, in his refusal to remove the link, acts as a “publisher” of the defamatory material.

The B.C. Supreme Court ruled that linking to an online article didn’t count as “publishing,” but the possibility remained that, in some cases, including a link could be construed as publication.

Newton, a Lake Cowichan writer, explains the decision to not take down the links as part and parcel with freedom of speech. “I’ve been writing about freedom of speech for years and when Crookes demanded I take down a link to a link which linked to online posts which he claims defamed him, the only thing I could do was refuse. And I’d do it again,” he says on his website.

So now the case sits in the Supreme Court of Canada because Crookes appealed the B.C. Supreme Court ruling, so the net has widened considerable and the stakes are even higher.

On Tuesday, Crookes’ lawyer outlined the basics of his client’s case: “When you put a hyperlink in the text, it’s part of the text.” He went on to express that the onus is on the users to review the material at the hyperlinked site before including it in the text.

The problem, however, is in the details. “If hyperlinking is publication, it will have a serious impact on the ability of those industries to bring content to its readership and to maintain its economic survival,” said Robert Anderson, an attorney representing print and broadcasting industry groups. With American laws already considering hyperlinks to not be a part of the publication on a website, categorizing them as such could mean interesting things for freedom of speech in Canada.

It is abundantly clear that Canada needs a comprehensive, clear policy as to what counts as “publication.” That there isn’t such a policy is yet another example of Canada’s consistent sluggishness with respect to digital matters. Online bloggers and “publishers” of all stripes who do their work on the internet in Canada should be watching this case very carefully.

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JC December 9, 2010 at 6:30 am

Very Interesting! I think they should follow the rules of a published book. If someone can be “defamed” by having another work cited in a book then I guess Crookes has some reasoning… But since I’ve never heard of such a case, he appeares to be out to lunch!
Why doesn’t Crookes go after the link that had the content he found so offensive? Seems easier then this mess.

Jordan Richardson December 9, 2010 at 6:59 am

Yeah, you’re on to it there. What this has the potential to reach out to is significant, as it could be used to establish precedent not just on internet publishing but on the entire nature of sourcing. If my remarks can be considered defamatory because I refer to the work of somebody who defamed you, the hindrance to my right to speak freely about any subject is insurmountable.

Because of the nature of the internet, this type of thing has incredible potential to damage the entire process in Canada. What’s worse, if any precedent comes out of this, it will leave us hopelessly behind the rest of the developed world. That this case even made it to the highest court in the land is a joke.

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