Watch those hyperlinks bloggers!

Court wades into Internet speech debate with hyperlinks case
Janice Tibbetts, Canwest News Service
Published: Thursday, April 1, 2010

In a 2009 decision, the B.C. Court of Appeal upheld a lower court's finding that the hyperlinks were effectively "footnotes" to Mr. Newton's posting. (Chris Mikula/Canwest News Service)

OTTAWA -- The Supreme Court of Canada, in one of its first cases dealing with the spread of information on the Internet, will decide whether the everyday practice of hyperlinking can expose a writer to a lawsuit if a linked article is defamatory.

"This case affects almost everybody on the Internet because the Internet works by linking from website to website to website," said David Fewer, director of the Canadian Internet Policy and Public Interest Clinic.

The court, without giving reasons, agreed Thursday to hear an appeal from Vancouver businessman Wayne Crookes, who alleges that writer Jon Newton defamed him by linking to reputation-smearing articles in a 2006 post about free speech on his website, www.p2pnet.net.

Mr. Crookes, a former campaign organizer and financial backer of the Green Party of Canada, lost in the B.C. Court of Appeal, which upheld a trial judge's conclusion that hyperlinks are akin to footnotes and do not constitute republication.

The hyperlinked blogs related to Mr. Crookes's role in the Green party. Mr. Newton did not repeat the content, nor did he include any comment about the links.

Mr. Crookes contends that Mr. Newton, by creating the hyperlinks and then refusing to remove them when advised they were libellous, became a publisher by his inaction.

"Given that Mr. Newton didn't break the hyperlink and continued to act as a chain of publication, Mr. Crookes is taking the position before the court that he is in fact republishing the defamation," said Dermod Travis, a spokesman for Crookes, owner of the company West Coast Title Search.

The B.C. Supreme Court rejected Mr. Crookes' challenge in a 2008 ruling that noted there was no way of knowing whether readers even clicked on the links.

"The purpose of a hyperlink is to direct the reader to additional material from a different source," said the decision. "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."

The Supreme Court has touched on online communication in a few other cases, including a recent ruling that gave journalists and bloggers stronger protection against defamation suits by creating a new defence.

The Mr. Crookes case, however, will be the first direct pronouncement on Internet freedom of speech, said Michael Geist, a University of Ottawa law professor who specializes in the Internet.

"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 and, for that reason alone, is going to have a major impact on the shape of the Internet in Canada," Mr. Geist said.

He noted that a 14-year-old law in the United States grants immunity for hyperlinks and he said that Canada should introduce similar legislation so the consequences of defamatory speech rest with those who are directly responsible.

The B.C. Court of Appeal, in its 2009 ruling, said the case is the first in Canada on hyperlink liability to reach the appeal level.

Mr. Newton, in a posting Thursday on his website, wrote that hyperlinking is what makes the web tick.

"Without it, the Internet would become a drab and pale facsimile of the exciting news, data and information medium it is today," he wrote.

"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."