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Canada Communications Media The Courts

Landmark Canadian Hyperlink Case Goes To Supreme Court 118

Posted by Soulskill
from the moose-sense dept.
An anonymous reader writes "Vancouver businessman Wayne Crookes is trying to reverse a decision by BC Supreme Court judge Stephen Kelleher that linking is not the same as publishing. He's been given permission to appeal it to the Supreme Court of Canada. If he wins, it could mean the end of the net in Canada and will reverberate around the world. 'The notion that someone might be considered a publisher merely by linking to someone else's content, I think could have a potentially huge chilling affect [sic] and, for that reason alone, is going to have a major impact on the shape of the Internet in Canada,' says Ottawa law professor Michael Geist. Hyperlinking is what the web is all about, says p2pnet founder Jon Newton. 'Without it, the Internet would become a drab and pale facsimile of the exciting news, data and information medium it is today. Instead, each item would be isolated from every other item, and online defamation lawsuits aimed at anyone and everyone with a Web site would instantly become commonplace.'"
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Landmark Canadian Hyperlink Case Goes To Supreme Court

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  • by popo (107611) on Sunday April 04, 2010 @08:36AM (#31723602) Homepage

    > " Instead, each item would be isolated from every other item, and online defamation lawsuits aimed at anyone and everyone with a Web site would instantly become commonplace."

    Actually, what would happen is everyone would host their websites offshore in nations with looser copyright laws, and the Internet would become increasingly decentralized as larger, "legitimate" players are isolated, and independent, "less legitimate" players circumvent legislation and continue to link.

    Ironically, this will *hurt* big media.

  • by TheRaven64 (641858) on Sunday April 04, 2010 @08:46AM (#31723660) Journal
    What constitutes a site? If I hyperlink to one page, am I 'publishing' everything hosted on that domain? Everything linked to from that page? Everything connected via the transitive closure of links from that page (which, in some cases, might include the entire Internet)? If I'm only publishing the directly-linked page, then the law is irrelevant and pointless, you can just link to something that redirects to the real destination (and waste a lot of bandwidth for people in Canada). If it includes the entire site, then this means that linking to an Ubuntu iso download page (for example) on a torrent site also makes you liable for everything that's hosted on that site. If it's anything linked even indirectly, then linking to Slashdot makes you responsible for Goatse. There is no possible interpretation of this concept which isn't stupid.
  • by Palestrina (715471) * on Sunday April 04, 2010 @08:50AM (#31723680) Homepage

    The cases that worry me more are the ones that concern linking (especially deep linking) and copyright.

    This case is about defamation, apprently the written kind which is called libel.

    From what I can see (and I am not a lawyer or Canadian), the following has been held:

    The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory.

    Thomas v CBC 1981 4 WWR 289

    I would be surprised if this case was decided on technical analysis of the exact nature of a hyperlink in HTML. (Of course I am often surprised) I think they might decide based on the effect of publishing the hyperlink. If it has the effect of slander, then it is slander.

  • by Beorytis (1014777) on Sunday April 04, 2010 @08:58AM (#31723734)
    Not much of a stretch now to say that footnotes also constitute publishing.
  • by Bearhouse (1034238) on Sunday April 04, 2010 @09:06AM (#31723786)

    Actually, I think that the courts pretty much demonstrated good understanding of technology in the first judgement.
    It's normal that the plaintiff should have a right of appeal - that does not mean he'll win, or that the appeal court does not 'get' the Web.

    This case hinges on whether or not linking is publishing, which - under the admittedly fairly bonkers rules of English-based defamation laws, (see http://en.wikipedia.org/wiki/Defamation [wikipedia.org]), determines whether or not someone has been libellous, (since we're talking about the written, rather than the spoken word).

    In the initial judgement, the Court reasoned, "...hyperlinks...are analogous to footnotes, rather than constituting a 'republication.' "

    In other words, he did not repeat the libel, so no case.

  • I like this logic! (Score:2, Interesting)

    by GiantRobotMonster (1159813) on Sunday April 04, 2010 @09:18AM (#31723866)

    If linking is publishing, then addressing should be ownership.

    I must own the bank down the street, as I've just written down its address.

    Finally Phase 3 is here! -- Profit!

  • by raftpeople (844215) on Sunday April 04, 2010 @12:35PM (#31725394)
    It all depends on your definition of publishing. Maybe there is an accepted legal definition of publishing, I don't know, but if not, trying to map current electronic activities into a print-based definition doesn't really make sense.
  • by inKubus (199753) on Sunday April 04, 2010 @12:37PM (#31725414) Homepage Journal

    "Publishing" is making some content available to the public. The question is really is advertising a public location for a given piece of content "publishing" that content. Further questions could also be asked, such as: Is owning the server that the content on make you the publisher? In this latter case, I think we need to draw parallels with the printing industry, because they have a lot of precedent that we wouldn't want to just throw away.

    1. Owning the server and network connection is like owning a printing press.
    2. Links are advertisements.
    3. Publishing is the act of making it available. In the case of public (free) publishing, that would be uploading the content to the web server.

  • by sjames (1099) on Sunday April 04, 2010 @02:33PM (#31726306) Homepage

    That's not mere linking though. That's serving data. There would be a lot of legal hairs to split (probably based on intent) to determine which of the several actors there were publishing the content. In your case, the someone who published the XORed content with the intent that the XOR be reversed has published (the intent is what matters). OTOH, if you create a key that when applied to someone else's unrelated work in order to reproduce a copyrighted work, you are the publisher (since you were the one that had the intent to transmit the work). If I merely point someone to your site, I have NOT published the work.

  • by techno-vampire (666512) on Sunday April 04, 2010 @02:57PM (#31726504) Homepage
    The question is really is advertising a public location for a given piece of content "publishing" that content

    If so, every newspaper that contains a listing of what movies are showing in what theater is "publishing" the movies in question and TV Guide is publishing an awful lot of television content, week in and week out.

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