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Canadian Court of Appeals Decides Website Linking Isn't Libelous
inject_hotmail.com writes "I found this promising news over on Michael Geist's website: In an amazing display of wisdom and understanding, British Columbia (Canada) court of appeals (in a split decision) decided that it is not libelous to link to defamatory content. The judge stated that 'there is, in my view, no substantial difference between providing a web address and a mere hyperlink. Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.' The case was brought about by B.C. businessman Wayne Crookes, who claimed that p2pnet had damaged his character by linking to websites with which he did not agree. Presumedly, the website with the actual content in question is outside of the purview of the Canadian courts; however, p2pnet is not."
It would be good for international trade relations and help us here in the states with our problem with technologically inept judges.
Do you have a link to that?
http://my.boss.is/a/stupid/fucking/bitch/i/hope/she/eats/shit/and/dies
Is that ok or not?
At first I thought it was great that we had a rational and logically intact court decision. Then I thought about how said it was that it happens infrequently enough that it is a news item when it does happen. Now I am depressed and need some Baskin Robbins.
The case was brought about by B.C. businessman Wayne Crookes
The website accused him of being a Crooke.
Imagine for a second if the verdict had gone the other way. I wonder how far it would have carried. If I linked to the P2Pnet article that linked to the (allegedly) libelous content, would I be guilty of libel? After all, if linking to libelous content is libel, then surely linking to an article with "libel links" is libel too, right? What if you link to an article that links to an article that links to P2Pnet's "libel links" article?
If that was libel too, then, say goodbye to the entire web. We're all guilty of libel. If secondary links aren't libel, do TinyURLs save you? After all, you're not actually linking to the libelous content. You're linking to TinyURL.com who is "guilty" of libel by linking to the content.
On one hand we would have had an overreaching verdict that could have made everyone guilty of libel and on the other we would have had a verdict easily bypassed by the simplest of externally hosted redirection scripts. All in all, it's great that the judges ruled the way they did. (Though it worries me that it was a "split decision.")
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
So if linking to libellous content does not constitute a libel, then perhaps linking to material which infringes copyright would not constitute an infringement of copyright...
The analogous case would be for the link in question to be directly to downloadable material, hosted elsewhere. A torrent tracker would probably fall into this category. If the link were to a torrent tracker which is hosted elsewhere, then it would be even less likely to be judged an infringement, based on this precedent.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
Agreed. What worries me though is that one of the three judges thought otherwise.
Why is it so hard to only have politicians for a few years, then have them go away?
A site address has to be highlighted, copied and pasted into an address bar in order for the site to be navigated to. A hyperlinked need only be clicked. Once.
It's obvious to anyone that legally, the hyperlink is no more than text and citation rolled into one entity. But socially and ergonomically, the hyperlink is an invention on par with putting spaces between words and the decimal system. Sure, you could emulate it with older techniques, but you could never replace it.
The people who bring these cases don't care about legalities. They care about just how easy these links, and the internet in general, make it for other people to access material that they don't want anybody seeing, or doing anything they don't want them to do. The issue for the legal beligerants here is not the legality, but the social and cultural effect of me being able to write the church of Scientology believes in an ancient intergalactic emperor called Xenu.
Me writing those words is one thing. Giving a like to a website is another. But merging the together, offing a statement and a place where more can be read is what they detest. It breaks completely the old model they preferred, where media was one way, from distributors to people, and that most information was hard to find and harder to get to. The hyperlink and the internet have the ability to make information equally accessible, anywhere any-time, in a piece of text. What the people bring these case want is to take awy the power of the hyperlink, to try and make it conform to the old rules of distributors liability and one way media. They want to put the genies back in the bottle.
The media and the legal profession hates the hyperlink. The irreverence and convenience with which it provides and uncovers information is in their eyes a blasphemy towards the intricate, esoteric bureaucracy from which they derive their power. When people like Pamela Jones can discuss in a popular way complex laws, suits and legalities using hyperlinked blog posts, this raises questions of why we should defer so much to distributors and legal customs.
These cases are not so much legal battles, as they are social ones.
May the Maths Be with you!
Of course this is the only possible common sense outcome, since in the alternative an opposite ruling would have banned hyperlinks altogether. This is because you never know what's on the other end of a link since the author of that page can change it at any time.
Btw, I don't type in text links from articles. I cut & paste them, which is often necessary on stupid blog sites that break the link across lines and only include the first line as the clickable (and incomplete) hyperlink.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Um... Why is there even mention of the Harper government (Federal) when this was the BC Court of Appeal (Provincial)? You'd want to poke at the Campbell government.
[19] Key passages from the trial judgeâ(TM)s reasons with respect to the issue of whether hyperlinking in this case amounted to the publication of the defamatory articles by Mr. Newton are paras. 29-31, as follows:
[29] A hyperlink is like a footnote or a reference to a website in printed material such as a newsletter [as in Carter]. The purpose of a hyperlink is to direct the reader to additional material from a different source. The only difference is the ease with which a hyperlink allows the reader, with a simple click of the mouse, to instantly access the additional material.
[30] Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided.
[31] I conclude that the reasoning of the Court of Appeal in Carter leads to the same conclusion on the narrower issue before me. Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website. I conclude that that does not make the publisher of the web address a publisher of what readers find when they get there.
[20] The trial judge emphasized that Mr. Newton did not publish any defamatory material in his own article on the p2pnet website; he did not reproduce any of the content from the impugned articles; and he did not comment on them. The trial judge adopted the proposition found in MacFadden v. Anthony, 117 N.Y.S. 2d 520 (Sup. Ct. 1952), and Klein v. Biben, 296 N.Y. 638, 69 N.E. 2d 682 (Ct. App. 1946), that âoereference to an article containing defamatory content without repetition of the comment itself should not be found to be a republication of such defamatory contentâ.