Is linking publishing? Stay tuned... Can you defame someone with a hyperlink? "If I lose there won't BE an Internet in Canada," Jon Newton wrote me this morning as he prepared to step aboard a Vancouver Island seaplane. "Just a shadow. " Newton is on his way across Canada this morning to Ottawa, where Canada's Supreme Court will tomorrow consider a key question for the Internet age: can a mere hyperlink be defamation? "Gang of Crookes" Newton is the publisher of p2pnet, a site which has for years chronicled the online file-sharing world.
Back in 2006, Newton wrote a piece about local Vancouver businessman Wayne Crookes, the owner of West Coast Title Search Ltd. Pilling's articles relied on the obvious pun here, using titles like "Friends of Crookes" and "Gang of Crookes. " Newton's piece was read by less than 2,000 people, but the lawsuit spawned by that article has now progressed to Canada's highest court, where the judges will rule for the first time on the liability that Internet users have for the hyperlinks they create. Who cares? Complications. Economic risks to media. If a person can be found to have defamed another just by including a hyperlink to a defamatory website, freedom of expression is at risk, Canada's top court heard Tuesday. The Supreme Court in Ottawa is hearing the case of Wayne Crookes, who is seeking damages from Jon Newton for defamation over links that appeared in an article posted on Newton's website on July 18, 2006.
((CBC)) "Hyperlinks are vital to the expression and use of the internet," said Harvey Delaney, one of two lawyers representing the respondent in the case, B.C. resident Jon Newton. Delaney said the "cost to expression would be too great" if internet users were held responsible for all material they simply linked to. The Supreme Court of Canada has reserved its judgment on the case, which was brought forward by Wayne Crookes, a former Green Party campaign manager, and his company, Appellant West Coast Title Search Ltd. Crookes alleges the hyperlinked aritcles were defamatory. Economic risk to media. Hyperlinking and ISP liability clarified by Supreme Court in Crookes case.
The Supreme Court released its reasons in Crookes v. Newton 2011 SCC 47 yesterday. The legal issue in the appeal was whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material. The majority of the Court concluded that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers. Although the case dealt mainly with that issue the Court gave expansive reasons which will have significant impacts on future cases involving Internet defamation, freedom of expression on the Internet, and the liability of ISPs for dissemination of defamatory or infringing content. The majority reasons were delivered by Abella J., on behalf of the Coram consisting of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. McLachlin C.J. and Fish J. wrote joint concurring opinions. In Bunt v.