Canadian Internet Users: Link to This Post at Your Own Risk

By Jennifer Welsh | December 7, 2010 1:05 pm

internectivityA lawsuit by Vancouver businessman Wayne Crooke might just break Canada’s Internet.

Crooke is suing the publisher of a site called p2pnet for a post about free speech in Canada, written in response to a libel lawsuit brought by Crooke. In the post, publisher Jon Newton linked to the allegedly libelous articles. Crooke asked him to remove the links, but Newton refused, so Crooke accused him of defamation.

If Newton loses in court, anyone who shares a libelous (whether they know it or not) link over the Internet would be guilty of libel themselves, a ruling that would essentially shut down the Internet, Newton explained to Ars Technica:

“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.”

The case has been dragging on for years, since the blog post went up in 2006. After Crooke lost in British Columbia court and in his provincial appeal, he successfully appealed his case to the Supreme Court of Canada, a trial that is starting today in Ottawa and is being streamed live.

The case could impact not only bloggers, who use hyperlinks in their text (see what I did there?), but also anyone who shares links over social networks like Facebook, Twitter, or Tumblr; via forums and link sharing services like Reddit, Digg, and Del.icio.us; or even search giants like Google, Bing, and Yahoo!.

Crooke argues that the inclusion of a hyperlink means that the author is essentially “republishing” the original libelous article, no matter how the link in included in the text. The Montreal Gazette quotes his written arguments:

“The creation of a hyperlink is a considered and active choice,” said [Crooke's] written arguments. “It is part of what the primary article has chosen to communicate. It is more than a mere reference, it is an inclusion.”

Newton and his defense team, including the Canadian Internet Policy and Public Interest Clinic, compare hyperlinks to footnotes, source references, or–in this example quoted by Ars Technica–a finger pointing at something:

“If two friends are walking past a sign with defamatory statements on it, and one friend, points it out the other, the law should not make the friend who points to the sign liable as a publisher of defamatory statements on that sign. This is all the more so with hyperlinks.”

But even Newton’s advocates note that there may be exceptions. Ars Technica explains CIPPIC’s idea that a person may be at fault for linking to libelous material if he has “knowingly endorsed and adopted the defamatory statements,” and also notes an example from the appellate judge:

As one of the appellate judges in the case noted, saying something like “the truth about Crookes can be found here” and linking “here” might be a very different thing from a mere bibliographic link.

Related Content:
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Discoblog: Ontario Parents Try to Protect School Kids From Dangerous WiFi Rays
Discoblog: Is Googling Bad For the Environment?
80beats: “Do Not Track?” FTC Proposes an Opt-Out for Internet Users
Bad Astronomy: SPEECH Act now a law: big win for libel reform!
Bad Astronomy: BREAKING: BCA drops libel case against Simon Singh!

Image: flickr / Jurvetson

  • Bill

    What a brave new world we live in!!

  • Brian

    It’s no republishing. It’s a citation, just like footnotes/bibliography.

  • George

    With a name like Crooke what do you expect…

  • chicken

    people may go to the street if Newton loses

  • http://wikileaks.de an ordinary person without lawyers

    What’s especially oppressive and disgusting is that the link was to http://openpolitics.ca itself, not the pages within it that Crookes complains of. So this means that if someone wants to accuse the New York Times of publishing a libellous comment in one article in its archives, *EVERYONE WHO LINKS TO THE NEW YORK TIMES AT ALL* could be liable.

    More disgusting even than that is that this was all about politics to begin with: The comments about Crookes (in “Gang of Crookes”, etc.) were about his activities in the Green Party of Canada, not his business or his personal life. In all other English speaking countries political comment is protected more clearly than it is in Canada.

    Online vigilante measures, such as hackers are now taking against Mastercard for banning contributions to Julian Assange and Wikileaks (now at http://wikileaks.ch and http://wikileaks.de and not .org any more), may be the only way to discourage characters like Crookes from trying to silence their political critics.

  • Brian Too

    Can’t see this getting far in the Supreme Court. And if it does, then it will be swamped with inadvertent violations of the decision. Maybe a few deliberate ones too.

    It seems like the footnote analogy is a strong one.

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