Canadian Supreme Court To Decide If Linking Is Publishing 82
An anonymous reader writes "Will Canada become a black hole in cyberspace? Or will it remain a country of which former prime minister Wilfred Laurier once said, 'Canada is free and freedom is its nationality.' According to p2pnet's Jon Newton, that'll be for the nine members of the federal Supreme Court to decide. Newton was sued by ex-Green Party of Canada financier Wayne Crookes for allegedly defaming him by linking to a story Crookes didn't like. Newton is now back home on Vancouver Island after traveling to Ottawa for the SCC hearing. Was it win or lose? It's an 'Epic Fail' for Crookes, Newton says. The Supreme Court reserved its decision. Its rulings are 'typically released six to eight months after a hearing,' according to the CBC in its report on the case. Says Ars Technica, 'As CIPPIC puts it, if Newton loses, the ruling could "chill hyperlinking which in turn undermines the communicative force of the Internet and deters innovation of new, expression-enhancing platforms that may not develop due to fear of defamation actions."'"
This could end Google in Canada (Score:3)
This could end Google in Canada
Re:This could end Google in Canada (Score:1)
Worst case, any link you would click would have a transit page stating the clicked link is unrelated to the originating page.
Re:This could end Google in Canada (Score:4, Insightful)
Why should I have to explain how the whole Internet is supposed to work for every link on my site, just because some clueless, easily offended n00b doesn't have a reason to sue?
That's retarded.
Linking is not publishing (Score:0)
If linking is publishing, then so is saying "Hey, take a look at this!" and I guess library index cards are also the complete book, and reading a number from a phone book is communicating with the person on the other end.
Re:This could end Google in Canada (Score:1)
Re:This could end Google in Canada (Score:1)
This could end Google in Canada
Darn! Because I was going to put on my canadian resume "I publish for Google" and then link to them from my facebook. Well, if Google is about to get copyright pwned by Canada for linking to the entire internet, I guess I can at least say "I publish for the New York Times" and link to them lol.
Re:This could end Google in Canada (Score:1)
Careful, that may be copyright infringement! (Only the copyright holder is allowed to publish)
Not going to happen (Score:2)
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
http://laws.justice.gc.ca/eng/charter/1.html [justice.gc.ca]
Re:Not going to happen (Score:2)
Sure, and by that reasoning, all libel laws would be unconstitutional. But they're not.
Re:Not going to happen (Score:1)
Trumped by 1.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Re:Not going to happen (Score:0)
Unfortunately copyright laws violate and trump those rights.
Re:This could end Google in Canada (Score:2)
www.cheap-prada.com sale prada shoes (Score:-1, Offtopic)
Re:This could end Google in Canada (Score:2)
Also looking at software/biz method patents (Score:0, Offtopic)
The Federal Court of Appeal (just below the Supreme Court) will be deciding if Amazon's 1-click patent is valid patentable subject matter.
* http://en.swpat.org/wiki/Canadian_patent_courts_and_appeals [swpat.org]
* http://en.swpat.org/wiki/Workspace_for_Canada_1-click_appeal [swpat.org]
* http://en.swpat.org/wiki/Canada [swpat.org]
It would be very useful if someone could pass on any hints about groups in Canada who might/should be interested in working on this.
Re:Also looking at software/biz method patents (Score:0, Insightful)
You know I really appreciate all the work that goes into your site and support it, I really do, but that's pretty offtopic. You don't need to shill the site in every ./ thread.
Re:Also looking at software/biz method patents (Score:0)
It's a YRO thread about Canada. Do you see any better stories to post it to in the last month?
Re:Also looking at software/biz method patents (Score:1)
Re:Also looking at software/biz method patents (Score:1)
Yeh, I paused when writing that post, but hey, I'm looking for help, and what's the point in *not* asking?
If no one has anything helpful to say, it will just get modded offtopic, and then my comment won't bother anyone, and that's what the mod system is for.
It'd be easy to lose the battle against software patents - just do nothing. Sometimes I comment to be informative, sometimes I comment just to shamelessly ask for help.
If decision wrong, it won't stand (Score:5, Insightful)
If the Supreme Court rules the wrong way, the decision won't stand.
Everybody from Google to Bell and Rogers will lobby heavily against this. This would certainly kill Google's business in Canada outright, seriously harm Microsoft through MSN/Windows Live and even result in less internet subscriptions for Bell and Rogers. Also, any Canadian news site would be doing a full court press against this. What's more, I don't see how any powerful companies would benefit from this wrong decision.
Rest assured that all these companies would lobby Parliament to change the laws so that this decision gets reversed.
Re:If decision wrong, it won't stand (Score:3, Insightful)
Not really, this is a classic among powers that be.
You simple make something very common illegal and then you don't enforce the law.
This way you make a lot of people criminals and you can cherry pick whoever you want to go after.
It is a very common way to get rid of the whole inconvient equal to the law thingy..
Captcha: Litigate
It affects the government...it won't stand (Score:2)
You simple make something very common illegal and then you don't enforce the law.
Apart from the fact that this tactic does not seem to have worked historically in Canada the problem is that this is civil law not criminal. Hence "enforcement" is up to someone with enough money to afford lawyers. I imagine it will stand until the content on a website that the government itself links to is found objectionable. Assuming the website owner does not have deep pockets it will be the government itself getting sued and then watch how fast the law gets changed.
The only questions are: will the supreme court be smart enough to see this (it could affect them too if they link to external websites...assuming that you can actually sue a court?) and, if they aren't, whether the government is smart enough to see the consequences and fix them immediately without waiting to get sued.
Re:It affects the government...it won't stand (Score:3)
The only questions are: will the supreme court be smart enough to see this (it could affect them too if they link to external websites...assuming that you can actually sue a court?) and, if they aren't, whether the government is smart enough to see the consequences and fix them immediately without waiting to get sued.
If it's bad enough, the justices will simply give a current stay on their response. And let the government change the law, if it's really bad. The government will file an appeal and then change the law so it's not so fucked up.
The current justices we have on the supreme court are good, they're smart, and they understand technology for the most part. I'm not really worried about this.
Re:It affects the government...it won't stand (Score:2)
IANAL but what I remember of Canadian laws, it's not only not useful but pointless to sue a court, you're suing the branch of the government that deals with the judicial when you sue to complain about a court's behaviour.
Re:It affects the government...it won't stand (Score:0)
it's not only not useful but pointless to sue a court
Both useful and pointless?
Re:If decision wrong, it won't stand (Score:0)
We have this exact situation here in Vancouver. We're facing the reduction in our speed limit from 50 Km/h to 30 Km/h to protect the pedestrians and cyclists. I've asked about whether the new speed limit would apply to cyclists since I know that most cyclists can easily reach 30 Km/h. The bicycle hotline says that the new speed limit will apply to everyone car or bicycle, the police say it will only apply to cars since bicycles aren't required to have speedometers.
So, the city will create a new law and then selectively apply it to cars only in contravention of the higher Provincial Motor Vehicle Act. They'll basically make virtually all car drivers criminals because there's no way that every car driver is going to be able to restrict themselves to 30 Km/h when there are already many who have trouble holding to 50 Km/h.
Re:If decision wrong, it won't stand (Score:3)
Comment removed (Score:2)
Re:If decision wrong, it won't stand (Score:1)
Also, the SCOC has the Charter of Rights and Freedoms to rely on, and they've been pretty clear that "freedom of expression" (albeit with greater limitations than in the US) is not something they want to mess with unless there's a very good reason.
I'd be very surprised if they hobble hyperlinking because some puffed up twit doesn't like what the hyperlink says about him
Re:If decision wrong, it won't stand (Score:0)
in any case, it's clear greens parties in all countries are crazed extremists who don't listen to logic.
Apt Analogies (Score:1)
Re:Apt Analogies (Score:0)
Canada's run a budget surplus for the past 7 years. See why we don't want to be like Canada? Reagan proved deficits don't matter!
Re:Apt Analogies (Score:4, Insightful)
No, to imply linking is publishing is to imply responsibility for the content at the website published by somebody else. Also the link must divine the future as you would would also deemed to have published all future changes to the web site after having published the link to that site.
Also the judge would have to be clairvoyant in an ruling with regard to your intent when linking to the site and how carefully you perused the contents of the site you linked to.
Publishing a link is publishing the description to that link and the link itself, nothing more nothing less. Any judgement to the contrary represents a corrupt bias to achieve political change whether as a result of corporate of government intervention.
An example a 'hyperlink description' http://en.wikipedia.org/wiki/Hyperlink [wikipedia.org], I read the first paragraph so that it was loosely be on topic and take no responsibility beyond that, not for the remaining content nor any future changes to that content, for any judge to say that I published the content referred to in the link would be a sure sign of corruption on the part of that judge.
Re:Apt Analogies (Score:0)
Indeed, that would make it trivial to setup most anyone.
Get the judge to simply refer to something of person A's.
Have person A change that something to describe or outright be a hate-crime.
Person A's friend, person B, then sues the judge for publishing a hate-crime.
Judges reference lots of things in court cases, no?
That isn't how responsible courts act (Score:3)
Justice Charron gets it, as did the lower courts. I'm therefor expecting the said "epic failure" for Charon's claim.
In addition, this this is a tempset in a teapot. The article is based on the desire of the news organizations to have something cool to talk about, rather that the recorded behavior of the courts.
In actual practice, courts are disinclined to make sweeping change is how a law is to be interpreted, and instead deal with the problem of "bad cases produce bad law" by writing very narrow verdicts.
Canadian courts in particular, when faced with massive failure of the law to meet its purpose, tend to send the law in question back to the legislature to be rewritten. If the supreme court were going to do something radical like define publishing the location of a defamatory article as equivalent to publishing the defamation, they'd had already said so, and put the government on notice they need to fix the law.
Instead they put it in the queue of boring stuff to write up in the next six months.
IMHO, Charron's radical claim is toast.
--dave (a philosopher, not a lawyer) c-b
Re:Apt Analogies (Score:1)
I still don't think this makles it "publishing" for what it's worth.
Re:Apt Analogies (Score:2)
Saying that Cowboy Neal eats babies for breakfast is clearly libelous. Is pointing someone in the direction of such a statement made by someone else libelous? I think it could be.
Re:Apt Analogies (Score:0)
If we're into analogies.
I'll say it's more akin to asking direction to someone (Google & cie) and getting a list of possible routes.
If you are publishing stuff, That would be that you are sending articles and whatnot to someplace (newspaper) and I can subscribe to it or stumble upon it.
My second argument is flaky I think.
THEY GOT A SUPREMEM COURT UP THER? (Score:-1)
Whatever the hell for? ... ay?
i can see russia from my backyard
doncahno
Canada, you can keep Palin !!
Re:THEY GOT A SUPREMEM COURT UP THER? (Score:0)
Alaska and Palin are both American, little one.
Re:THEY GOT A SUPREMEM COURT UP THER? (Score:0)
The court gets it (Score:0)
"Says Ars Technica, 'As CIPPIC puts it, if Newton loses, the ruling could "chill hyperlinking which in turn undermines the communicative force of the Internet and deters innovation of new, expression-enhancing platforms that may not develop due to fear of defamation actions.""
Calm down. It's not the end of the web. On the plus side, the published comments from the courts already have the judges saying the same thing. Read the quote by Justice Charron. Some of them apparently understand the implications. This is a good sign. At worst I think they're going to say that if you specifically *endorse* what is said in linked material, then maybe you're defaming someone. I can't see people being held liable for any more than what *they* are saying or specifically saying they agree with.
Re:The court gets it (Score:2)
But Jordan countered that internet users should be responsible enough to review material and make a judgement before linking to it.
And I don't see anywhere in any of the articles (not exhaustive coverage, admittedly) that anyone has pointed out that content can - and does - change after it is linked to. How can one be held responsible for that?
Must be consistent (Score:2, Interesting)
If they choose that to be the case, then they have to be consistent. Meaning the paper equivalency must also be considered publishing. So no more citing sources in essays.
html link (Score:0)
It's up to the reader to interpret the html link element, because the link itself doesn't contain the linked-to data. If this indeed IS publishing then you had better watch out for my interpretation of your other html elements as well.
I must say (Score:3)
Wherever the truth lies in this dispute, that initial linked p2pnet piece is horribly written and non-illuminating. There has to be a better story, not written by a six-year-old, that covers this case.
Re:I must say (Score:5, Informative)
Re:I must say (Score:2)
http://www.cbc.ca/technology/story/2010/12/07/hyperlink-supreme-court-defamation-libel.html [www.cbc.ca]
There's a decent one by the CBC. This story doesn't seem to have been picked up much, though.
Perfect - thank you.
Re:I must say (Score:1)
Re:I must say (Score:2)
...and the end of newspaper stands! (Score:0)
Newspaper stands that display the frontpages of newspapers in their window, also (re)publish!
Freedom is overrated (Score:0, Troll)
If linking to websites is considered freedom, then I don't want to be free.
Re:Freedom is overrated (Score:2)
Dude, you just crashed my irony detector.
Re:Freedom is overrated (Score:2)
Dude, you just crashed my irony detector.
That's impossible. Irons don't have operating systems or otherwise run software, so they can't crash.
And as for whether or not linking is publishing...
I hold this truth to be self evident that merely linking to a page such as my Dance Dance Revolution Hottest Party 3 Detroit Rock City Demo [youtube.com] is not the same in any way shape or form as actually publishing my Dance Dance Revolution Hottest Party 3 Detroit Rock City Demo.
(And don't worry. It is not a goatse link in any way shape or form.)
Re:Freedom is overrated (Score:0)
Soon they will. Think about the possibility of an iron detecting the type of fabric and setting the temperature automatically, or an iron detecting the formation of a bad solder with the help of nifty sensors... ;)
Linking in other circumstances have been considered as "making it available" in connection of criminal cases where I write this. This is not a criminal case, but a civil thingy. They could argue similarly and end up with the definition of linking as similar to publishing only in the case of precise description of such a correspondence in the criminal law.
What a waste (Score:3)
It's like assembling a committee to determine if water is dry.
Re:What a waste (Score:2)
It's like assembling a committee to determine if water is dry.
Well, sir, MY water is certainly dry. Yours, however, is simply no cold enough yet.
The answer is: "No way, that's stupid." (Score:3)
If I call the police and "link" them to the address of a burglary in progress, am I committing burglary?
Are the workers that install road signs which "link" bank robbers to the locations of the banks they rob guilty of robbery?
If a library's card catalog "links" a terrorist to a book on chemistry would not the librarians and publishers be guilty of terrorism?
If my website links to a page about ponies, and the domain is later transferred to a porn site, am I a then pornographer until I remove the link?
Did I just make Slashdot.org into the new PirateBay? [google.com]
Re:The answer is: "No way, that's stupid." (Score:2)
If I call the police and "link" them to the address of a burglary in progress, am I committing burglary?
No, you are telling them that a burglary is taking place. With libel, it is the act of telling someone something (that is untrue and damaging to their reputation) that is the offence. So I can see how linking to a libelous statement made by someone else could be the same as making the statement yourself. You are bringing the statement to the attention of a wider audience.
Re:The answer is: "No way, that's stupid." (Score:0)
In some US states like Florida, the answer to the above is yes.
http://idle.slashdot.org/comments.pl?sid=1889784&cid=34394334
Linking? (Score:2)
Who is Wayne Crookes? (Score:2)
...and why should we care to not make the rest of his existence insignificant except as a footnote in history? He has already achieved all the historical significance he "deserves".
Re:Who is Wayne Crookes? (Score:0)
Obviously, Wayne is a Crookes.
Posted AC for obvious reasons. ;)
Re:Who is Wayne Crookes? (Score:2)
According to my research, he's some kind of legal&money man who caused a fuck-up in the Green Party and then effectively Streisanded his way into our consciousness.
We wouldn't know the guy is a crook if he wasn't so adamant about attacking freedom of expression. Let's hope he's a crook AND a loser.
Re:Who is Wayne Crookes? (Score:2)
He's an arrogant cocksucker who thinks it's reasonable to ruin the web because somebody pointed out that somebody else said something about him that ruined his feelings.
Fuck you, Wayne!
Does it matter (Score:0)
Re:Does it matter (Score:2)
what Canada decides?
reading that again it sounds like flamebait, sorry. What I mean is that the internet is an international phenomenon and while Canada or Nicaragua or whoever can decide whatever they want, most web sites and or businesses on the web are not fixed to a physical location. It's like raising corporate taxes. Companies will just go elsewhere or declare that they are doing X thing elsewhere where it is legal/cheaper.
Re:Does it matter (Score:2)
what Canada decides?
reading that again it sounds like flamebait, sorry. What I mean is that the internet is an international phenomenon and while Canada or Nicaragua or whoever can decide whatever they want, most web sites and or businesses on the web are not fixed to a physical location. It's like raising corporate taxes. Companies will just go elsewhere or declare that they are doing X thing elsewhere where it is legal/cheaper.
Tell that to the poor sap who gets sued for linking to someone's Facebook page where a picture of a LOLcat was later changed to a comment stating "John Q. Public is an alocholc and a fagg! ROFL!" People can't run from or change unpleasant laws as easily as corporations do. And dare I say a lot of Slashdotters are Canadian.
Re:Does it matter (Score:0)
Point taken, but Who is linking in the case you describe? The poster? Facebook? The server where the bits live? Samsung or Sony for making the monitor? From what I can tell, they are talking about people linking on a static page, no user generated content.
It's not as evil as it looks (Score:4, Insightful)
Most of the media is making the point of the lawsuit solely about linking. The important point in the lawsuit is whether or not deliberately linking defamatory or libelous content (i.e you know what the linked content it) is the same as spreading defamatory or libelous statements.
The lawsuit is not about links for which you are not aware of the semantic content (i.e. search results from Google).
For example, I find a web page that incorrectly paints you as a pedophile. I link to it, and other likewise defamatory content, spread my link to your associates. I have written no defamatory content myself, but ....
Re:It's not as evil as it looks (Score:0)
"The lawsuit is not about links for which you are not aware of the semantic content (i.e. search results from Google)."
Surely the whole point of Google is that it *does* know the semantic content of the pages it links you to?
If it didn't, it wouldn't be much of a search engine...
Re:It's not as evil as it looks (Score:3)
Precedent (Score:4, Informative)
To help seperate the demafation issue from the linking issue, here is some relevant reading of a precedent about publishing quotations: http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html [umontreal.ca]
My read of it: the court leaves the jury a lot of leeway to infer intent of a writer based on common sense ... so the ruling on this new case will probably focus on what new defences (misunderstanding, possible edits of the document linked to, etc) a jury can consider, rather than letting the linker off the hook completely.
Don't Worry, Canadians Are Sane (Score:2)
Re:Don't Worry, Canadians Are Sane (Score:0)
USA. Not America. America means either (North or South America) or (North and South America). It's not really a legal entity. It's amusing that only Usians don't really have a word to call themselves. I think they should adopt Usian, but they're free to choose whatever - as long as it doesn't imply Canadians and Mexicans and everyone else on those, you know, two continents belongs to the USA. God, what a bunch of assholes.
This post contains the Library of Congress (Score:1)
And this made it to Supreme Court? (Score:1)
Linking can definitely be publishing. (Score:2)
If you show someone else's page in an iframe or frameset, it's copying, even if the user has to click on something to make it appear.
The ethics must be based on the plain appearance of what is going on, not the implementation.
This ends libraries. (Score:1)
To some degree Amazon is indistinguishable from a library card catalog. Search for subject, title, keywords or other index key and copy the ISBN or Dewey Decimal number, submit and magically you have a book via the LINK PROVIDED.
Linking is not publishing (Score:1)
Wayne Crookes and his gang (real reputation) (Score:0)
The Assange contrast is valid, at least. It's kind of amazing for Crookes to make any claim about his "reputation", as it takes under ten seconds to find mainstream coverage of his legal abuses, including much professional commentary on lawyers' blogs. There's so much you probably need to search on more specific combos like
"Wayne Crookes" + "gang of Crookes" (name of the artice that seems to have ticked Crookes off most)
"Wayne Crookes" + "Julian Assange" (contrasting their view of the Internet, which a few have done)
"Wayne Crookes" + "ICCPR" (intelligent discussion of the right of political free speech worldside and likely impact of Crookes-style suits)
"Wayne Crookes" + "political comment" (or any other similar term - look up in particular the well-informed discussion on Michael Geist's blog - predictably, Crookes has also sued Geist!)
Interestingly there is *NO WIKIPEDIA ARTICLE* presently on him, though there has been. Seems he has been partly successful in chilling informed comment about him in key venues. So shameful that Wikipedia can be intimidated even with EFF founders on its board, while braver folks including Michael Geist and Jon Newton are left out there defending on their own resources.
You will definitely need to qualify your searches. A plain search of "Wayne Crookes" yields a rather astonishing pile of negative opinion, for obvious and legitimate reasons. This is not his first crank case against the entire Internet. ;-) It is similarly not reducing the field of responses much to add "dirtbag", "douchebag", "n00b", "idiot", etc.. It also appears he has been accused of perjury in his affidavits in the many lawsuits - no idea if that has gone to court. Even very narrow searches like "Wayne Crookes and his gang" get a few very informative hits.
Re:Wayne Crookes and his gang (real reputation) (Score:0)
For balance scouring the entire Internet for one pro-Crookes opinion yielded only this: http://piwindowonbusiness.wordpress.com/2010/11/02/wayne-crookes-lawsuits-disconcerting-and-perhaps-even-frivolous-but-are-they-a-necessary-exercise-in-the-establishment-of-internet-accountability/
The author of which is probably misinformed as to the context of Crookes' case:
- it was not celebrity gossip or other personal matters Crookes was criticized for, but his public actions as a financier and simultaneously officer of a major Canadian federal political party
- none of the materials had been found defamatory as of the demand Crookes made of Newton
- Newton linked only to the front page of http://openpolitics.ca not to any of the pages Crookes names in his suit, which by the time of Crookes' demand were substantially altered anyway
So stating that the issue needs court scrutiny is not the same thing as saying that Crookes is right - about anything. He will remain the laughingstock and dark horse threat to the Internet. A suitable villain to put against our hero Assange. ;-) It would be easier to assemble a list of all slightly sympathetic comment about Crookes and demonstrate how misinformed they are, than to compile what's wrong with him. At least he will never be able to sue anyone ever again over defamation as there is probably no one with a worse reputation on the entire planet. ;)