Supreme Court of Canada refrains from breaking the internet

[fredr123]

The Supreme Court of Canada today released its judgment in Crookes v. Newton. The main issue at stake in this case was whether by posting a hyperlink to defamatory material, the person posting the link can be held responsible for defamation (i.e., whether posting a hyperlink is publication of the defamatory material for the purposes of the defamation analysis).

Thankfully, the Supreme Court came to a reasonable conclusion (in my opinion) and said "no", thus failing to completely break the internet in Canada.

The entirety of the decision can be found here:

Summary of facts from the SCC website: http://scc.lexum.org/en/2011/2011scc47/2011scc47.html

The Appellant Wayne Crookes alleges that he has been defamed in various articles which first appeared on the Internet in 2005. The Respondent, Jon Newton, owns and operates the website www.p2pnet.net. On July 18, 2006, he authored an article, headed “Free Speech in Canada”, which hyperlinked one of the articles, as well as the website containing the other impugned articles. Those articles, in turn, were hyperlinked to one another. Mr. Crookes takes the position that, by creating these hyperlinks, or by refusing to remove the hyperlinks when advised of their defamatory character, Mr. Newton became a publisher of the impugned articles found at the hyperlinked websites. Mr. Crookes and his company, the Appellant West Coast Title Search Ltd., brought an action against Mr. Newton for damages for defamation.

[VladtheImpaler]

Bingo:

[photon]

So here's a question, does this have any impact on other kinds of material that is linked to.

I.e. if someone linked to a site that published the name of a young offender or circumvented a publication ban or whatever, would that be seem the same way as in this case?

[VladtheImpaler]

Originally Posted by photon

So here's a question, does this have any impact on other kinds of material that is linked to.

I.e. if someone linked to a site that published the name of a young offender or circumvented a publication ban or whatever, would that be seem the same way as in this case?

Hold on, have to read the ratio, or did you already do so fr? Presumably/logically, the same rule would apply...

Per majority:

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.

Looks good. I'll keep reading.

[fredr123]

[30] Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.

You know how some blogs use the title of the post in the url? If you post a link like http://yourmomsawhore.tumblr.com/fotzes-mom-is-a-whore.html I think the SCC leaves open the door for a successful defamation action in that instance. Of course, truth is always an available defence so perhaps this is a poor example.

I think the SCC left open the door for other kinds of links too. For instance, those annoying links that automatically display the page when you hover over them.

[mykalberta]

Your link seems broken

[photon]

Originally Posted by fredr123

Of course, truth is always an available defence so perhaps this is a poor example.

[fredr123]

Originally Posted by photon

So here's a question, does this have any impact on other kinds of material that is linked to.

I.e. if someone linked to a site that published the name of a young offender or circumvented a publication ban or whatever, would that be seem the same way as in this case?

The SCC kept their decision to a pretty narrow set of facts and refused to speculate on other kinds of hyperlinks. This won't be a binding or definitive decision for the kinds of issues you identify above. However, I'm with Vlad and think that a mere hyperlink to a site that would violate a publication ban isn't enough to constitute publication.

The SCC commented that if in the context of the post surrounding the link there was some sort of endorsement of the contents of the link, that this might be a different situation and could constitute publication for the purposes of the defamation analysis. Perhaps a post that suggested the name of a young offender could be discovered by following this link without actually posting the person's identity could be a violation of the YCJA or whatever publication ban in place because of that added context.

Another difference with respect to young offenders is that the publication ban contained in the Youth Criminal Justice Act goes a bit further than simply banning the publication of the young person's name:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

I think "any other information related to a young person" is broad enough and opens the door to an interpretation that might attract liability for someone who posts even a bare link to a site identifying the young person.

[VladtheImpaler]

/\

Technically, when people on here were discussing the little monster from the Hat going to MRU, they would seem to have been in violation of the YCJA. Had someone posted a hyperlink to an an American "female killers" website and said nothing more revealing than "this might be of interest", I think that would have been OK. At least that's my interpretation of the law, and of the ratio of this case.

[photon]

Yeah and that's pretty much what happened a few times, people posting links to US sites with varying degrees of what to expect to find going there.

I don't think Bingo's interested in being a litmus case so I removed the posts, but always nice to know whereabouts along the line the law gets, um, interesting.

[bizaro86]

This is the only reasonable conclusion, which makes it nice that's where they ended up. A footnote referencing a published book refers to something static. A hyperlink leading to a site doesn't control the content of what's contained there. If the owner of the site/blogger changes the content after the link has been published to something illegal, the person linking might not even know about it.

[fredr123]

Originally Posted by photon

Yeah and that's pretty much what happened a few times, people posting links to US sites with varying degrees of what to expect to find going there.

I don't think Bingo's interested in being a litmus case so I removed the posts, but always nice to know whereabouts along the line the law gets, um, interesting.

Remember that guy who was in that car accident and his girlfriend died? At the time of the accident, local media spoke openly about the tragedy. Papers printed his name and other organizations he was involved in posted videos and other information about him on their website. Police investigated and eventually charged him as he was allegedly impaired at the time of the accident. Because he was under 18, suddenly the YCJA provisions kick in and it is illegal to identify the driver. Big PITA for newspapers who already ran stories that are available online which published his name. So. Lame.

[Titan]

[QUOTE=VladtheImpaler;3333837]/\

Technically, when people on here were discussing the little monster from the Hat going to MRU, they would seem to have been in violation of the YCJA. Had someone posted a hyperlink to an an American "female killers" website and said nothing more revealing than "this might be of interest", I think that would have been OK. At least that's my interpretation of the law, and of the ratio of this case. BUT this is not intended to be legal advice. Please contact your lawyer for advice specific to your situation.[/QUOTE]

fyp

[Northendzone]

so we will still be able to access redtube and whatnot right?