No intermediary liability for hyperlinking, Supreme Court of Canada rules

The Supreme Court of Canada has just released its much anticipated decision in  Crookes v. Newton, 2011 SCC 47 (see my previous posts: Supreme Court of Canada grants leave in internet hyperlink defamation case: Crookes v. Newton and  “I link, therefore I defame?” Not so, says the British Columbia Court of Appeal).

In very welcome news to website owners, bloggers and forum moderators, the majority opinion by Abella J. (Binnie, LeBel, Charron, Rothstein and Cromwell JJ. concurring)  held that there is no intermediary liability for hyperlinking to defamatory content which does not constitute re-publication unless the alleged libel is endorsed or repeated. The majority held:

[27]                          Hyperlinks are, in essence, references.  By clicking on the link, readers are directed to other sources.  Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article.  Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page.  Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked.  (See David Lindsay, Liability for the Publication of Defamatory Material via the Internet, Research Paper No. 10, University of Melbourne Centre for Media, Communications and Information Technology Law (2000), at pp. 14 and 78; M. Collins, The Law of Defamation and the Internet, at paras. 5.42 and 2.42 to 2.43.)

[28]                          These features — that a person who refers to other content generally does not participate in its creation or development — serve to insulate from liability those involved in Internet communications in the United States: see Communications Decency Act, 47 U.S.C. § 230 (1996); see also Jack M. Balkin, “The Future of Free Expression in a Digital Age” (2009), 36 Pepp. L. Rev. 427, at pp. 433-34; Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997);Barrett v. Rosenthal, 40 Cal.4th 33 (Cal. 2006); Fair Housing Council of San Fernando Valley v. Roommates.Com LLC, 521 F.3d 1157 (9th Cir. 2008).

[29]                          Although the person selecting the content to which he or she wants to link might facilitate the transfer of information (a traditional hallmark of publication), it is equally clear that when a person follows a link they are leaving one  source and moving to another.  In my view, then, it is the actual creator or poster of the defamatory words  in the secondary  material who is publishing the libel when a person follows a hyperlink to that  content.  The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content .  (See Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, at paras. 97-102.)

[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.

[42]                            Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.  Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.  Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.  While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.

McLachlin C.J.  and Fish J. concurred in the result, but were of the view that a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.  A mere general reference to a website is not enough to find publication.  Also, the Chief Justice and Fish J. recognized that the law struggles to keep up with the pace of technology and that the issue is by no means resolved, noting:

[52]                          We add a final comment, with an eye to future technological changes.  Abella J., as noted, states that “a hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers” (para. 14).  So long as it is necessary to click on a hyperlink to access its content, this may be correct.  What, however, of features in which a hyperlink projects content on the page automatically, or in a separate frame, with little or no prompting from the reader?  Would inclusion of such a hyperlink, by itself, amount to publication?  Like the issue of embedded hyperlinks, this question is not before us and should not be taken to have been decided in this case.  Like Abella J. (at para. 43), we would leave issues concerning hyperlinks of this sort to be dealt with if and when they arise.

Deschamps J. also concurring in the result, disagreed with the majority’s holding to grant a blanket immunity for hyperlinking to defamatory content:

[96]                          What should be clear from this is that not all forms of references are the same as regards the extent to which they facilitate access to the information in question. While my colleague’s statement that “[h]yperlinks are, in essence, references” (para. 27) is superficially correct; it is inaccurate to equate a hyperlink with, for example, a footnote in a book. A footnote that does not actually reproduce the information to which the reader is being referred does not make that information readily available. The reader has to locate and obtain the document the footnote refers to and then find the information within the document. In contrast, an automatic hyperlink requires no action whatsoever, while an embedded deep hyperlink requires only the tap of a finger to gain access to the information. The effort involved is even less than that of turning a page in a book. Although it is of course true that hyperlinks are a form of reference, the extent to which they facilitate access and their ubiquity on the Internet cannot be overlooked.

At para. 103 of the decision, Deschamps J. points out that the  Communications Decency Act, 47 U.S.C. §230 (1996) only exempts ISPs and website owners from liability for their passive, as opposed to active, conduct.  The issue of hyperlinking is not fully resolved, as Abella J. notes,

[43]                          I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies.  As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available.  Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.

As I have stated previously,

Website owners are the fulcrum between the freedom of expression and protection of one’s reputation. Many website 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 propogate the cyberlibel.

In my view, the majority’s decision is sound. It protects ISPs, website owners and bloggers from liability for third party content (who hasn’t included a link without reading it?), while still allowing people to sue the maker of the statement. Whether embedded or automatic links become a “hot button” issue remains to be seen.

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