Hyperlinks as ‘publications’ would threaten digital publishing, media companies say

OTTAWA—Defining hyperlinks as publications would set a dangerous precedent that could impact competition in the digital media sector, interveners told the Supreme Court at a hearing Tuesday. “If hyperlinking is publication, it will have a serious impact on the ability of industries to bring content to its readership and to maintain its economic survival,” Robert Anderson, counsel with Farris, Vaughan, Wills & Murphy LLP, told a full bench of Supreme Court justices Tuesday. Anderson appeared on behalf of the Canadian Newspaper Association, the Canadian Media Lawyers Association, Magazines Canada, and Canadian Journalists for Free Expression. He said hyperlinks are critical to page rankings in Google searches, and if links become legally defined as publications—and potentially defamatory ones—it could lead to a “chicken perspective” online. “They simply won’t be able to compete, particularly with their American colleagues,” Anderson said. The Supreme Court held the hearing Tuesday in a case that seeks to determine whether a hyperlink can be considered a defamatory publication if it connects to defamatory material online. The Supreme Court is hearing the case on appeal from the British Columbia Court of Appeal. Anderson appeared representing one of five interveners at the hearing Tuesday. All interveners argued that a link should not be considered a publication. Wayne Crookes, of West Coast Title Search Ltd., is seeking damages for defamation related to articles that first appeared on the Internet in 2005. He argues that those who post links to infringing material should be liable. The respondent in the case, Jon Newton, is the owner and administrator of website p2pnet.net, linked to allegedly defamatory material in July 2006. Crookes lawyers argue the hyperlinks drew attention to defamatory statements, and that by convention a hyperlink intends to incorporate linked content. Parties argued before the court Tuesday the speed and convenience of access that hyperlinks provide should not be a factor in the court’s decision. Richard Dearden, counsel with Gowling Lafleur Henderson LLP, who intervened on behalf of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), suggested that the difference between clicking on a hyperlink and typing in a web address is only a mechanical action that takes just a few additional seconds. “Just because you can hyperlink and it gives you accelerated access to the linked material, that shouldn’t be used against you to impose liability,” Dearden said. In his opening arguments, Crookes’ lawyer Donald Jordan, counsel with Taylor Jordan Chafetz, said a hyperlink effectively becomes part of the text it is located in. “When you put a hyperlink in the text, it’s part of the text,” he said. People choose to create hyperlinks, which is effectively a repetition of the defamation, he argued. Several court justices asked questions about whether a test should be established—such as evidence of knowledge of the defamatory material or the number of visitors redirected to it—to determine liability. Justice Marie Deschamps questioned whether the number of people redirected to defamatory sites through a hyperlink should come into consideration. “The volume of the information is such that, unless someone directs attention to the information , it’s useless,” Deschamps said. “Don’t we have to give some weight to this action?” Jordan told the court that requiring evidence that a hyperlink redirected visitors to the material may not strike the right balance. Justice Louise Charron suggested a chilling effect could result if the courts presume all hyperlinks are publications. “It seems to me that if we accept the position you’re putting forth, no one should ever hyperlink. Maybe I’m a chicken, but I would not dare create a hyperlink because there might be some defamatory material and I’ll be stuck defending myself in court,” she said. “We’re sentencing the hyperlink to death, it seems to me.” Wendy Matheson, counsel with Torys LLP, who intervened on behalf of the Canadian Civil Liberties Association, argued the web contains fluid information that changes regularly. A hyperlink may not link to a defamatory webpage in one instance but it could in the next, she said. “Any test based on technology and how technology works is simply too uncertain. Technology changes every day,” she said. “It’s not as simple as, ‘Now that it’s easy, I should be the publisher of it, even though I didn’t utter the words.’” Roy Millen, counsel with Blake, Cassels & Graydon LLP, representing the B.C. Civil Liberties Association, told the court it should draw a line on what constitutes liability for hyperlinks. He said posters of hyperlinks should be found liable only if they say they adopt or endorse the opinions expressed on the linked page. “Making it available is not sufficient,” he said. “Drawing attention isn’t sufficient. You’ve got to do a lot more than that to achieve publication of it and adoption of it.” The court reserved judgment on the case. A decision is expected within six to eight months. sdoyle@thewireport.ca

Hyperlinks as ‘publications’ would threaten digital publishing, media companies say

Broadcast | December 8, 2010

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