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Canadian Court Rules "Hyperlink" Is Not Defamation 120

Posted by ScuttleMonkey
from the don't-tread-on-my-links dept.
NewYorkCountryLawyer writes "In a landmark ruling, a Canadian court has ruled that a web site's publication of hyperlinks to an allegedly defamatory web site is not in and of itself a 'publication,' and therefore cannot in and of itself constitute defamation. In a 10-page decision [PDF], Crookes v. Wikimedia, Sup. Ct., British Columbia, Judge Keller dismissed the libel case against Jon Newton, the publisher of p2pnet.net, which was based on the fact that his article contained links to the allegedly defamatory site, since hyperlinks, the Court reasoned, are analogous to footnotes, rather than constituting a 'republication.' Mr. Newton was represented in the case by famous libel, slander, and civil liberties lawyer Dan Burnett of Vancouver, British Columbia."
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Canadian Court Rules "Hyperlink" Is Not Defamation

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  • Plagiarism! (Score:5, Funny)

    by Itninja (937614) on Monday October 27, 2008 @06:57PM (#25534767) Homepage
    The entire text of this post was lifted from here! [slashdot.org]
  • Of course not (Score:4, Insightful)

    by thetoadwarrior (1268702) on Monday October 27, 2008 @07:03PM (#25534823) Homepage
    Of course it isn't just as telling someone that there is a book that says Hitler is a bad guy isn't saying it yourself even if it's true.

    It's informing someone of a resource not defaming someone.
    • Re:Of course not (Score:5, Interesting)

      by whoever57 (658626) on Monday October 27, 2008 @07:20PM (#25534981) Journal

      Of course it isn't just as telling someone that there is a book that says Hitler is a bad guy isn't saying it yourself even if it's true.

      It's informing someone of a resource not defaming someone.

      Let me suggest that you read all the way to the end of the decision -- context is everything. The judge essentially said that the context in which you put the link is the critical factor:

      [34] I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written "the truth about Wayne Crookes is found here" and "here" is hyperlinked to the specific defamatory words, this might lead to a different conclusion.

      • But that's adding an opinion of your own to a link and not just linking. However if the site or page was called that & that was the whole link text then it's fine, imo. It sounds like he'd probably agree.
      • Re:Of course not (Score:4, Insightful)

        by TubeSteak (669689) on Monday October 27, 2008 @07:37PM (#25535177) Journal

        Let me suggest that you read all the way to the end of the decision -- context is everything. The judge essentially said that the context in which you put the link is the critical factor:

        I would think that the context shouldn't matter at all unless the linked-to material had been previously proven defamatory in a court of law.

        But IANAL, so what do I know.

        • Re:Of course not (Score:5, Informative)

          by ceoyoyo (59147) on Monday October 27, 2008 @08:58PM (#25535861)

          If you claim something is true, you're responsible for that claim even if the actual something was written by a third party.

          I write "TubeSteak is accurately described thusly: " and goes to one of the more interesting parts of the bible that talks about child molestation, it's not the bible (in that case) that's being defamatory.

          • Re: (Score:3, Funny)

            by retchdog (1319261)

            Not just defamatory; it would be Bible-libel.

          • by TubeSteak (669689)

            I write "TubeSteak is accurately described thusly: " and goes to one of the more interesting parts of the bible that talks about child molestation, it's not the bible (in that case) that's being defamatory.

            That sounds like regular defamation.
            The difference here is that the linked-to material was referencing the guy (Wayne Crookes) by name.

            Even if I linked to [alleged defamatory material about ceoyoyo (59147)] and said "the truth about ceoyoyo (59147) is found here," you'd still need to prove that the material was actually defamatory for the legal claim to go anywhere.

            I just don't see how there was ever a cause of action if the underlying material hadn't been shown harmful yet.

            • by ceoyoyo (59147)

              Yes, you'd have to prove the material linked to was defamatory. I don't think that was contested though. The linked material was either proved to be defamatory or stipulated by both parties. The issue was whether the linker was responsible or not.

              If I'm writing about you and I link your name to your entry on Wikipedia (doesn't everybody have one?), the court said I'm innocent, no matter what your Wikipedia page says, defamatory or not. On the other hand, if I say "I've seen TubeSteak do this! [wikipedia.org]" then it w

          • Re: (Score:2, Interesting)

            by collinstocks (1295204)

            IANAL, so what if you claim something is true and link to it (assuming it is perfectly valid content), but then the content changes such that it can be ruled defamatory? Can you then be responsible if you do not change your link right away?

            • by ceoyoyo (59147)

              Neither am I, but I don't think that's been tested in court. I expect it's inevitable that someone will one of these days.

              Probably, provided you get a judge that follows, the plaintiff would have to prove that you were responsible for the change to the linked material, or at least that you refused to modify your page when told of the change. Otherwise you'd be taking your financial well-being in your hands every time you linked to Wikipedia.

        • Re: (Score:3, Informative)

          by MicktheMech (697533)
          Read the second last paragraph of the decision. The judge says that if you write "The truth about X is here". And [here] contains a defamatory you could be liable for lible.
      • So, if I link the name of a specific company, say Caton Commercial [willcounty...tcourt.com], to a website of the courthouse of the county they are located in, that shows their current court cases, that would be an acceptable use of hyper-linking?

        I just want to make sure, so that they aren't able to craft some sort of streisand-effect based Cease and Desist [demystify.info] letter that would make them look unprofessional.

    • Till the invocation of Goodwin's law. Not a record, but my hats off for the valiant try sir!
    • by mcgrew (92797) *

      1. Hitler isn't a bad guy, as he no longer exists. He WAS, however, a very evil man.

      2. Saying that the head of the Abraham Lincoln Presidential Museum is a thief is not lible; it is a fact [slashdot.org] (going to update that link shortly)

      3. Saying that my ex-wife is a fucking bitch isn't lible; it's an opinion (and one shared by many)

      4. The court did right this time! Yay!

  • The name of the plaintiff is oddly appropriate. Just reading the first couple of pages of the decision really makes me just shake my head. Some people...

    Cheers,

  • by blair1q (305137) on Monday October 27, 2008 @07:08PM (#25534861) Journal

    CowboyNeal resumes breathing, and takes his finger off the main power switch.

  • footnotes!? (Score:2, Informative)

    by El_Muerte_TDS (592157)

    Hyperlinks are more like references rather than footnotes.

    • by thermian (1267986) on Monday October 27, 2008 @07:23PM (#25535021)

      Hyperlinks are more like references rather than footnotes.

      Well, they're really like a lot of tube entrances...

      • by ceoyoyo (59147)

        By footnote I assume the judge meant a reference included as a footnote, rather than a I-want-to-say-some-more-stuff-but-I-want-to-put-it-someone-you-can-ignore-it-if-you-want-to footnote.

    • by RoboRay (735839)

      What exactly do you think footnotes are?

      • by JustOK (667959)

        Something they use in podiatry schools?

      • by Capsaicin (412918)

        What exactly do you think footnotes are?

        Giving the OP the benefit of the doubt (s)he was perhaps drawing a distinction with the 'reference' in the page the refers to the footnote underneath? In any case that, what is relevant here is the 'reference' to external information. A hypertext reference pointing to an external document clearly is like a footnote.

    • by v1 (525388)

      they really ARE references, but web browsers make them so much easier to follow by simply clicking. You have to be truly interested in a reference to go dig up the book/article/paper it refers to and read the content, where a hyperlink is just a quick click away in a new tab if you like. I think that's why they judged them to be more like footnotes.

      Not so much saying what they are, but saying how they're used.

  • Two reasons:

    There are two issues for determination in this application. First, the defendant says that there is no evidence that any person followed the hyperlinks in question or read the words that are complained of. The plaintiffs have therefore failed to prove publication, one of the essential elements of the tort of defamation.
    Second, in any event, the defendant argues that creating a hyperlink to words that are defamatory is not publication of those words.

    No proof links were clicked:

    Regardless, the issue in this case is not how accessible the website is, but rather, if anyone followed the hyperlinks posted on the p2pnet site. Without proof that persons other than the plaintiff visited the defendant's website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication. As in Crookes v. Holloway, the plaintiffs have not adduced any evidence to support this claim.

    Footnotes analogy:

    I agree with the defendant that footnotes in an article are an apt analogy. Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed.

    Not a libel loophole:

    It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written "the truth about Wayne Crookes is found here" and "here" is hyperlinked to the specific defamatory words, this might lead to a different conclusion.

    • Re: (Score:3, Interesting)

      by GuldKalle (1065310)

      Regardless, the issue in this case is not how accessible the website is, but rather, if anyone followed the hyperlinks posted on the p2pnet site. Without proof that persons other than the plaintiff visited the defendant's website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication.

      So, if I publish libel in my newspaper, anyone wishing to sue me must prove that someone actually read that particular article?

      • Newspapers have audited circulation. Websites do not. For example, a newspaper may have an audited circulation of 23,000. That means if an article is deemed libelous, it's assumed the newspaper was delivered to 23,000 homes where people had a chance to read it.

        With newspapers, it's assumed that people have read the libelous article. That's when other defences come into play such as fair comment, prior publication, etc.

        Conclusion: Don't put counters on your website, and don't keep an IP log.

        • by blair1q (305137)

          That technical niggle was not the crux of the defense, really.

          The reason the plaintiff won't appeal is that hyperlinking is even less than quoting in terms of importing statements made by the linked/quoted person.

          The reason it will never come up again is everyone else will be smart enough to say "but your honor, YOU just followed the link."

      • by Miseph (979059) on Monday October 27, 2008 @07:51PM (#25535317) Journal

        No, but they must prove that you actually published the paper. The ruling is more like saying that if a newspaper mentions a book which contains libel, the newspaper is not liable for it because they never published it anyway, unless they also distributed copies of the book with the paper.

        IMO, a bigger concern is actually that there is no control of precisely what lies on the other side of a hyperlink... if I put one on my site, and 6 months from now, long after I've likely forgotten about it, the owner of the linked ite decides to put up libel, where does that leave me? Fortunately, I think this ruling would pretty well stifle any attempt to hold somebody liable for that, but the fact that this was ever in question is somewhat disturbing.

        • by kent_eh (543303)

          IMO, a bigger concern is actually that there is no control of precisely what lies on the other side of a hyperlink... if I put one on my site, and 6 months from now, long after I've likely forgotten about it, the owner of the linked ite decides to put up libel, where does that leave me?

          It leaves you explaining to the judge that all files have easily queried "last modified" timestamps (Yes, I know they can be faked). Also, the Wayback Machine (and any other archive or cache) will also have datestamps on any snapshot of the 2 sites that they might have archived.
          I would think someone would have a pretty easy time getting acquitted. (IANAL, YMMV, etc)

          • by Miseph (979059)

            Sure they would, unless for some reason thousands of people were to access the modified page through yours... then it might get sticky. Keep in mind that, much like the rest of the generation from which we derive them, for every judge that does have a decent grasp of current tech, there are a lot of them who are completely clueless.

            I could definitely see some problems arising if, for example, a popular webcomic were to mention a website only for that website to turn into a giant "Obama iz a terrist hil blo

        • This is really not that exciting of a ruling in terms of the legal history of defamation IMHO, but it is a great example of judge "getting it" in how old laws apply to new technologies.

        • by Thelgar (204368)

          IMO, a bigger concern is actually that there is no control of precisely what lies on the other side of a hyperlink... if I put one on my site, and 6 months from now, long after I've likely forgotten about it, the owner of the linked ite decides to put up libel, where does that leave me? Fortunately, I think this ruling would pretty well stifle any attempt to hold somebody liable for that, but the fact that this was ever in question is somewhat disturbing.

          I disagree.

          Not only did someone consider the lega

          • by Miseph (979059)

            You understand that no ruling was made on the point I posted, right?

            My concern wasn't that the ruling made was poor, my issue is that a potentially much more serious issue was not resolved. This may not have been the best case for it to be resolved, but that doesn't mean there's no cause for concern.

    • Still, I have mixed feelings about this.

      I'm not sure how bad this is in canada, but the dingbat-right think tanks maintain vast rings of fake blogs, which are populated with deliberate fabrications and distortions, linking to one another in a circular fashion to create the illusion of credibility.

      This extension of the echo chamber has produced things like the obama=muslim crap, and i've seen morons posting absurdities about how rome was a welfare state.

      This ruling makes it much harder to combat things like

      • by WCguru42 (1268530)

        This extension of the echo chamber has produced things like the obama=muslim crap, and i've seen morons posting absurdities about how rome was a welfare state.

        The saddest part about this is the fact that people in the United States of America view a person being Muslim as a bad thing. Shows how backwater our country is, but I have a feeling we're not alone.

        note: This is not a judgement of the parent poster just an observation of the culture of the USA.

      • Not at all. Eventually, someone is posting libel, defamatory material, whatever, which can still be handled in the normal way. All this means is that you can't prosecute anybody who links to that material. If it's the same people doing both, as you seem to imply, then there's no problem.
    • No proof links were clicked: note the gentle way in which the Court advanced several points concerning a previous case where the same plaintiff had likewise failed to offer evidence, and in consequence had that claim denied. The decision, the second time around, has all the more force as a result.
  • by Anonymous Coward

    This ruling is soooo much easier to read than American (US) judge's rulings. When I had my little biz law class, most of the rulings had to be interpreted by the attorney teaching the class (i.e. "this is what the judge meant.")

    The Canadian ruling, OTH, is in English. Go figure.

    Is it because, the US Bar Association is protecting its members by making the legal "language" aka Legalese hard to understand or is because most US judges are fucking retarded and can't put a coherent sentence together?

    • by Kandenshi (832555) on Monday October 27, 2008 @07:28PM (#25535075)

      Is it because, the US Bar Association is protecting its members by making the legal "language" aka Legalese hard to understand or is because most US judges are fucking retarded and can't put a coherent sentence together?

      Perhaps, just perhaps, that's not an "or" question? I'm going to go waaaaay out on a limb and say that the answer to your question(s) is just "Yes." Yes the bar association is trying to cover the ass of their members, and yes a fair number of US judges seem to make mind-bogglingly weird decisions.

      • Newton got lucky and got a judge that actually has a basic understanding of the Internet. Most Canadian judges are as bad, if not worse, than American judges, when it comes to understanding the "Internets." This is great news, however, because our libel laws in Canada are a lot more strict than the U.S. Any victory that broadens free speech is great news.
        • by schon (31600) on Monday October 27, 2008 @08:48PM (#25535789)

          Most Canadian judges are as bad, if not worse, than American judges, when it comes to understanding the "Internets."

          Do you have any references for that?

          The only other "internets" case I've heard of was the P2P case, wherein the judge told the CRIA to collectively get stuffed.

          Now, this isn't exactly scientific, but if you could cite other internet (or technology) related cases that were wrong, I'd appreciate being enlightened.

          • If his comments were to viewed as libellous, the last thing he would want to do is post a hyperlink to prove his comments are true. Did you read the article?!

        • I have the good fortune of knowing a couple of his colleagues on the BC Supreme Court.

          You know what? They're decent, conscientious, intelligent people whose capacity for formal reasoning is more than sufficient for understanding the technical concepts pertaining to this case, especially as they're commonplace in any office environment.

          Now, something like email header forging, say, that requires an understanding of design and implementation details behind the scenes, would require special consideratio
        • You want to back that up instead of essentially defaming Canadian judges in general? :-)

          In my experience reading the news, Canadian judges definitely get the Internet a lot more than their American counterparts and its not surprising with Canadian households being much more "connected" than American ones.

          The Canadian judge who ruled on Copyright infringement with P2P used a photocopier-in-a-library analogy which was also apt and well thought-out. I'm proud to be Canadian in these times.

          • You make a good point, I'll take back some of my vitriol.

            But I still think Canadian judges are all over the map and unreliable when it comes to making progressive, clear and decisive rulings about publications on the Internet. Compare the following three judgments from this year (which were in B.C. alone, I don't know what other judges in Canada are deciding). They all send different messages.

            In this one a neo-Nazi in Fort St John is found guilty of defamation. [gov.bc.ca] One of the factors in the judgment is that h

            • In the first case, it wasn't the dominant issue of the case, it simply contributed to the obviousness of the hateful nature of the site.

              In the second one, your assumption is not correct -- server logs would confirm how many people saw it, but there's no direct link between paper readership and Internet readership of any given publication.

              As for the third, I sure hope people continue to be held responsible for what they say in writing, whether its on the Internet or otherwise. There is no difference between

              • I could respond, but obviously you didn't read my post thoroughly, or the judgments I linked to, and you seem more interested in expressing your opinions about what you think the law should be than what it actually is, and how it is being interpreted by judges.

                Don't let the facts get in the way of your opinion, OK? And I'm done here.

                • I'm not sure how you came to that conclusion, or perhaps you're not aware of how subjective the 'law' really is. Judges are there to interpret the law and apply it to specific circumstances appropriately.

                  We have juries for severe cases for exactly this subjectivity -- what the people want is how the law should work, in democracies. So yes, my opinions matter.

    • by conlaw (983784)

      This ruling is soooo much easier to read than American (US) judge's rulings.

      If you think US judges' rulings are unclear, you need to read a few decisions from Britain's Law Lords. They each write a nice long opinion expressing their feelings on the matter and then they publish them all together. However, the Lords tend not to include in their commentary their opinion of the underlying issue (i.e., were the Crookes plaintiffs defamed? Or was there an actual publication?) Then the litigators in subsequent cases get to decide if there even is a decisive result in the earlier case.

      • However, the Lords tend not to include in their commentary their opinion of the underlying issue (i.e., were the Crookes plaintiffs defamed? Or was there an actual publication?) Then the litigators in subsequent cases get to decide if there even is a decisive result in the earlier case.

        In other words, all British court rulings are like SCOTUS (Supreme Court of the U.S.) rulings?

        • Yes, in a way - the Law Lords are the final court of appeal in the UK (though the EU Court of Human Rights can be appealed to as a last resort if the Lords go against you).

          They are the most senior of senior judges (similar), not politically appointed or motivated (dissimilar), and tend towards the abstract in their rulings (not sure how abstract Scalia et al could manage).

          So yes, it's similar but uniquely British.

        • by conlaw (983784)

          In other words, all British court rulings are like SCOTUS (Supreme Court of the U.S.) rulings?

          While it's true that the Supremes can hand down some ambiguous rhetoric, they nearly always give you a count of "who's on first." It may be that the opinions are like the following:

          Opinion by Justice A, joined in parts 1 and 2 by the Justices B, C, F and I. Justice D, concurring as to part 2, but dissenting as to parts 1 and 3, and so on.

          The chief difference between these and the Law Lords is that you generally count where they each stand so one can say, e.g., There was a 5-4 decision as to parts 1 and

    • by hyades1 (1149581)

      As a long-time retard and occasional fucktard, I deeply resent your unfounded allegation that many American judges are retards. They're far less intelligent than that, and certainly less honest.

      If you're going to make insulting comparisons, I suggest you consider flatworms, amoebae or perhaps Congressmen as potential models of your basic judge's corrupt, brainless behaviour.

      Thank you for your consideration.

  • where's our focus? (Score:3, Insightful)

    by wikinerd (809585) on Monday October 27, 2008 @07:25PM (#25535043) Journal
    A huge document, an army of highly-paid professionals, and lots of time devoted to arguing about whether hyperlinks are republications or footnotes. It's no wonder why the economy goes like this and nobody produces anything. Geez. I'd prefer to live on a planet where the humans prefer investing their time and energy in growing potatoes and assembling widgets in factories, rather than arguing about whether hyperlinks amount to republication or footnotes. I am not saying that legal professionals are not useful people, they are, but what I am saying is that we, the humanity as a whole, seem to have lost our focus on what is really important: in a sane society a case like this wouldn't even be subject to argumentation and analysis, because there are a myriad other more productive activities to spend one's time (yea like posting on slashdot!).
    • Re: (Score:1, Funny)

      by Anonymous Coward
      Pssst: While you were posting, there were some kids on your lawn. Possibly trampling your azaleas.
    • by bentcd (690786)

      (...) but what I am saying is that we, the humanity as a whole, seem to have lost our focus on what is really important (...)

      We cannot actually have lost something if we never had it in the first place. People have been overly litigious bastards ever since courts were invented and before this they routinely bashed each other's heads in over the same grievances. This is just the human condition(*), it's been with us since forever and it's not going away any time soon.

      (*) - I might be a bit unfair on us humans here - more likely this is the general condition of evolved intelligent social beings anywhere but we really only have a si

  • hmm (Score:3, Funny)

    by moniker127 (1290002) on Monday October 27, 2008 @08:15PM (#25535515)
    I wish all of my decisions were ten paged!
  • Since links aren't defamatory, I can post something like this [wikipedia.org] with impunity!

    • by ceoyoyo (59147)

      Fourteen minutes since you posted and there's STILL no entry by that name. I'm disappointed.

  • and you're going to give lawyers a good name.
    • Keep it up Ray... and you're going to give lawyers a good name.

      Thanks, action. But the real credit goes to Dan Burnett, the British Columbia lawyer who stood up for the right thing, and probably did it pro bono. My hat is off to him.

  • to see such rulings. This judge seems to have had his head on his shoulders.

    Thanks for the post.
  • by rossz (67331) <ogre.geekbiker@net> on Monday October 27, 2008 @10:12PM (#25536445) Homepage Journal

    The loser will just take this case to the Canadian Human Rights Commission. The rules of evidence and law don't apply. The truth is not a defense. Your chance of successfully defending yourself against the most outlandish charge is almost nonexistent.

    Example. Magazine published a review of a book critical of islam. Someone charged the magazine with a human rights violation. Years of hearings costing a bundle of money and the only reason they didn't lose was because of the huge amount of publicity that particular case received. This was the ONLY time someone did not lose against the CHRC.

    Google on the subject and be amazed.

  • That kills my infinite storage device patent. It simply stored content and then a link to itself. Oh well.
  • Guys its ok. After all this ruling was just in Canada, which of course means its not worth the paper it was printed on. Oh sorry, was that defamatory? *Fixes*

    Thank goodness I know the secret Slashdot "Edit Post" button.
  • by PinkyDead (862370) on Tuesday October 28, 2008 @08:13AM (#25539575) Journal

    "Your honour I would like to prove my point with this simple demonstration. The link you see on my screen appears harmless enough, but when I click it...."

    "Jesus H Christ! What the fuck is that?! Turn it off! Turn it off! Case dismissed! Clear the court room!"

  • > hyperlinks, the Court reasoned, are analogous to footnotes, rather
    > than constituting a 'republication'.

    Hyperlinks are analagous to a guy standing on a corner saying, "Hey, over there is another guy who's calling Donald Trump a crook!"

    I don't believe that bit of info would fall under a liability law, but IANAL.

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