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I link, therefore, I defame? Supreme Court of Canada to decide whether hyperlinking is publication

Trials & Tribulations
|Written By Antonin I. Pribetic
I link, therefore, I defame? Supreme Court of Canada to decide whether hyperlinking is publication

On April 1, the Supreme Court of Canada granted leave in the British Columbia Court of Appeal decision in Crookes v. Newton, presenting a welcome opportunity for the Supreme Court to clarify the nature and scope of online intermediary liability in Internet defamation cases.

In Crookes, a divided Court of Appeal panel concluded that hyperlinking an allegedly defamatory article does not constitute publication to attract liability as an online intermediary.

The plaintiff alleged he had been defamed in various articles, first appearing on the Internet in 2005. Three of the articles, entitled “Wayne Crookes,” “Friends of Crookes,” and “Gang of Crookes” appeared on the web site openpolitics.ca. A fourth article, “Wayne Crookes,” appeared on usgovernetics.com.

The defendant was the owner and operator of the web site p2pnet.net. On July 18, 2006, he wrote an article entitled “Free Speech in Canada” hyperlinking the “Wayne Crookes” article found on usgovernetics.com, and openpolitics.ca containing other impugned articles, each of which were cross-hyperlinked, as well.

The trial judge rejected the plaintiff’s argument that by creating these hyperlinks, or, by refusing to remove them when notified of their defamatory nature, constituted publication.

Both the majority and the minority dissenting opinions agreed with the trial judge that there is no presumption of publication arising from the mere act of hyperlinking (at paragraph 42 per Justice Jo-Ann Prowse, and paragraph 78 per Justice Mary Saunders.) However, Saunders, in comparatively brief reasons, parted company with Prowse, on the key issue of whether the defendant’s hyperlinking of the articles regarding the plaintiff constituted publication, concluding:

“In my view, the approach taken by my colleague to the effect that from the number of persons accessing Mr. Newton’s web site it may be inferred that a person in this jurisdiction accessed the impugned articles by clicking on them, does not sustain scrutiny. In the context of Internet life, we have no way to assess the volume of ‘hits’ here compared to the norm, the usual behaviour of Internet readers or ‘surfers,’ or the jurisdiction in which they reside. The conclusion drawn by my colleague is, with respect, tantamount to a presumption that in the case of a web site accessed to any significant extent, there has been communication of the offensive material. This is contrary to her conclusion on the issue of presumption, and one with which I do not agree. The conclusion effectively reduces the element of publication to the role of the publisher without consideration of the receipt of the impugned material. There may be cases in which more is known supporting such an inference, but such is not the case here where all that is before us is the bald number of hits. In my view there is an insufficient basis upon which to make such an inference, and the inference drawn cannot co-exist with the reasons for judgment on the matter of a presumption.”

In a lengthy and erudite dissent, Prowse takes issue with the majority’s characterization of the defendant’s role as an online intermediary. The learned justice noted:

“The Internet has fostered an exponentially expanded opportunity for individuals to communicate about every conceivable matter to the world at large. It has, thus, created an exponentially expanded potential for the spread of defamatory material. This fact has presented challenges to courts seeking to find the balance between the competing values of freedom of speech and protection of reputation which arise in defamation cases. One expression of the nature of those competing interests in the Internet context is found in an article, Lyrissa Barnett Lidsky, ‘Silencing John Doe: defamation & discourse in cyberspace’ (2000), 14:4 Duke L.J. 855, where the author, in commenting on the potential effects of ‘libel chill’ on freedom of speech, states at 860-61, 863-64: ‘The promise of the Internet is empowerment: it empowers ordinary individuals with limited financial resources to “publish” their views on matters of public concern. The Internet is therefore a powerful tool for equalizing imbalances of power by giving voice to the disenfranchised and by allowing more democratic participation in public discourse. In other words, the Internet allows ordinary John Does to participate as never before in public discourse, and hence, to shape public policy.’”

A major bone of contention will be the “active vs. passive” dichotomy. In Prowse’s view, there is “no substantial difference between providing a web address and a mere hyperlink.”

Conclusions/Implications

The Crookes appeal will have significant ramifications for bloggers and free speech in Canada. In the recent decision of Grant v. Torstar Corp., and its companion case Quan v. Cusson, the Supreme Court of Canada incorporated the “defence of responsible communication on matters of public interest,” also referred to as the “responsible journalism” defence, into the law of defamation in Canada.

The “responsible journalism” defence was held to apply to both traditional news journalists and non-journalist bloggers alike: “[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree . . .  that the new defence is ‘available to anyone who publishes material of public interest in any medium.’

“A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.”

Web site owners are the fulcrum between the freedom of expression and protection of one’s reputation. Many web site owners endeavour to promote online community standards. Where an Internet service provider acts in good faith in improving the online community, one may argue that it is entitled to be shielded from liability for defamatory content; particularly if it was unaware and did not actively incite or propagate the cyberlibel.

Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, and a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program and author of the Trial Warrior Blog.


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