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Canadian Supreme Court To Decide If Linking Is Publishing 82

Posted by Soulskill
from the followed-by-a-ruling-on-whether-apples-are-oranges dept.
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."'"
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Canadian Supreme Court To Decide If Linking Is Publishing

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  • by Joe The Dragon (967727) on Saturday December 11, 2010 @10:21AM (#34522928)

    This could end Google in Canada

    • by Anonymous Coward

      Worst case, any link you would click would have a transit page stating the clicked link is unrelated to the originating page.

    • by jappleng (1805148)
      Google.ca being 1 out of 5 Canadian websites that exists you mean? lol i kid, i kid...
    • 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.

    • It's not going to happen because it is unconstitutional.

      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]

      • by c6gunner (950153)

        Sure, and by that reasoning, all libel laws would be unconstitutional. But they're not.

      • by roju (193642)

        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.

    • I don't really understand how legal jurisdiction works on the internet, but what would keep Google from redirecting google.ca to google.com (like the way they redirected traffic from China to Hong Kong last year)?
    • Won't happen, doesn't matter. Even with the conservatives in power.
  • by javacowboy (222023) on Saturday December 11, 2010 @10:29AM (#34522970)

    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: (Score:3, Insightful)

      by Anonymous Coward

      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

      • 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

        • by Mashiki (184564)

          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.

        • by perlchild (582235)

          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.

    • by mark-t (151149)
      How would it result in less internet subscriptions for bell and rogers? Unless you are proposing that consumers would simply discontinue their internet completely. I agree that companies are going to be upset by this, but the proposal has the merit of screwing absolutely everybody over equally.
    • by houghi (78078)

      It is pretty sad that we think we depend on companies so much. So instead of saying _I_ do not stand for it and will do anything that I can, we are now at the stage of _Some company_ will not agree with what I want and do the work for me.

      And people wonder why companies have so much power.

      rest assured that all these companies would lobby Parliment to change the laws so that this decision ends up just how they like it. e.g. companies have free speech and can link. Individuals MUST work hard, increase producti

    • by rtyhurst (460717)

      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

  • Isn't that like deciding whether posting someones telephone number, or postal address is the same as calling them or sending them a letter? It's a symptom of private agenda vs public interest. How deep do you really need to go, and why else waste the public time and money on something so obvious?
    • Re:Apt Analogies (Score:4, Insightful)

      by rtb61 (674572) on Saturday December 11, 2010 @11:29AM (#34523276) Homepage

      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.

    • 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 verd

    • by 91degrees (207121)
      There is a certain difference. An html A href tag is formatted specifically for a computer to follow the link. This might be enough to push it into the context of a "device".

      I still don't think this makles it "publishing" for what it's worth.
    • by jonbryce (703250)

      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.

  • Must be consistent (Score:2, Interesting)

    by Anonymous Coward

    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.

  • by 93 Escort Wagon (326346) on Saturday December 11, 2010 @10:47AM (#34523066)

    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.

  • by MikeV (7307) on Saturday December 11, 2010 @11:06AM (#34523150)

    It's like assembling a committee to determine if water is dry.

    • 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.

  • 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]

    • by jonbryce (703250)

      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.

  • I wouldn't call it publishing... maybe aiding and abetting to publishing.
  • ...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".

    • 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.

    • 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!

  • by esookeca (1867812) on Saturday December 11, 2010 @12:03PM (#34523496)

    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 ....

    • by BitterOak (537666)
      Correct. And another very significant point about this case is that the defendant was asked by the plaintiff to remove the link before the suit was filed and the defendant refused. So a verdict in favor of the plaintiff wouldn't necessarily imperil all those with websites containing links, but merely those that refuse to take down links to defamatory material when asked. I'm not saying that would be a good thing, but not nearly so disastrous as the headline makes it sound.
  • Precedent (Score:4, Informative)

    by Fractal Dice (696349) on Saturday December 11, 2010 @01:28PM (#34524012) Journal

    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.

  • It's a good thing this is coming to court in Canada, and not in the America that already decided that linking to a Torrent is effectively sharing the material yourself.
  • Since this post mentions the Library of Congress, it publishes it. 140 characters IS enough for anybody, apparently.
  • I'm trying to decide if this is the most moronic, uninformed court case I've ever heard of. Come on Canadians! A link is a reference! How the hell is that publishing? And if by these politicians' utter depravity, they rule in Crookes' favor, I'm going to have a good laugh as they try to enforce this absolutely hilarious decision.
  • 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.

  • If linking is illegal then library cards are also illegal. Perhaps more so if a library has a card catalog on line.

    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.

  • I may generate a link to my website or another, which is a perfectly logical thing to do. However many days later, someone posts something to that website. So, which came first, the chicken or the egg. Links don't have ways to validate dates that links were established.

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