SCC FTW!

So recently we praised the CRTC; today we praise the Supreme Court of Canada (SCC). What is up with these institutions? Yesterday the Court granted some kick-ass protection to anyone who has ever linked to defamatory content on their site. Check out the details after the jump.

Take yourself back to the glory days of 2006. Wayne Crookes was a campaign manager for the Green Party of Canada (insert your own politician Crookes joke here) working out of B.C. Jon Newton runs p2pnet, a website with all sorts of useful content, most of it just linked from elsewhere on the web. The site calls itself the “1st site with unspun, international daily news on P2P, online freedom, and digital media.” I guess that’s pretty accurate.

So Mr. Crookes was unhappy with what he called a “smear campaign” against him going on on the internet. p2pnet linked to a couple of these articles elsewhere on the intertubes, which Mr. Crookes said were defamatory. So he sued the site that just linked to them, p2pnet. That’s clever lawyering on someone’s part.

For something to be defamation, the rule is the content has to be “published”. Defamation, btw, basically just means negative statements that aren’t true. You can’t say that shit on the internet! Anyway, so the statements have to be published (actually they have to have “conveyed defamatory meaning to a single third party who has received it”, but that’s too long). So that was the question for the Court – if you are just linking to something, have you published it?

In their decision yesterday, the Court unanimously said no. No publication, no defamation. End of story. See you soon!

OK, right, I’m the internet law guy who is supposed to explain these things and dive in a bit deeper. Let’s go to the  blockquotes:

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.

Basically what Justice Abella writes here is what I just told you. Plus, it is the person who actually wrote the libel that is publishing it, not the linker. Libel, btw, is just defamation that has been written down (or broadcast electronically somehow). Compare that to “slander” which is defamation spoken orally, in person. Look how much you are learning today!

However, the protection is not really 100% absolute. The Court went on to say:

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. (that’s my bolding)

So what the Court says here is that if I link to something, and then actually repeat it on my own site, I am liable for defamation. That’s reasonable, certainly. But what is even more reasonable is what a couple of the other Justices say. While the Court was unanimous on the actual outcome of the decision, two Judges (McLachlin and Fish) wanted a different approach for this part:

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 (again, my bold)

This is probably a more sensible approach imho. If I give a link to Mr. X’s piece on the internet, and I write a whole bit of my own saying “go read Mr X’s stuff about that guy. Mr X. is totally awesome and I agree with everything he has to say” I have essentially said the same thing as Mr. X.

Let’s go to the big finish:

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.

Amen, SCC.

tap of the gavel to reader steve for the tip yesterday