The Supreme Court of Canada ruled Wednesday that hyperlinking to defamatory material on the internet does not constitute publishing the defamatory material itself. The unanimous decision effectively shields Canadians who publish a link, as long as the linking itself does not repeat the defamatory content. It alleviates concerns that allowing suits for such links could cast a chill on internet use. While a similar protection exists in the United States, the US Surpreme Court has never ruled on the law.
The suit arose in British Columbia: Jon Newton runs a website that includes commentary about various issues, including free speech and the Internet. In 2006 he created a post on his site entitled “Free Speech in Canada.” The article contained various links to other websites. Wayne Crookes, a former Green Party campaign manager, felt some of these cites contained articles about him and the party that were defamatory and asked Newton to remove the links. Newton refused, prompting legal action by Crookes.
Crookes sued Newton on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, he was publishing the defamatory information. Crookes’s lawyer argued that by linking to a website, one is inviting and facilitating the reader to go to that website. Newton’s lawyers noted his website did not reproduce any of the disputed material, nor make any comment about it. They also pointed out that, while there are circumstances when an internet author explicitly endorses an article they link to, Newton did not. The trial judge sided with Newton and, in 2008, so did the Supreme Court of British Columbia. Crookes then appealed to the Canadian Supreme Court.
In its ruling, the high court noted that there is often no control over the hyperlinked material, which could be changed without notice. It likened their use in such articles to footnotes rather than traditional publication, concluding that applying the traditional definition to someone who hyperlinks could have a chilling effect on internet use:
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. 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.
However, the court did says that if someone presents content from the hyperlinked material in a way that repeats the defamatory content, they can be considered publishers and are therefore at risk of being sued for defamation.
Newton’s victory was bittersweet as the cases drained his finances and affected his health. The advertising revenue on his website fried up and his health is failing him. Still, he remains thankful to Vancouver lawyer Dan Burnett, who took his case pro bono.
Web hosts and publishers in the United States are protected by Section 230 of the Communications Decency Act of 1996, which protects them against legal claims arising from hosting information written by third parties. The rule is simple: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” While courts have been broad in their definitions of “interactive computer service providers”, the law is not completely settled and has never reached the Supreme Court.