Supreme Court decision removes chill of hyperlink liability, experts say

A Supreme Court of Canada decision Wednesday that struck down an appeal to define hyperlinks as publications for the purposes of defamation has “removed an element of uncertainty” for online news producers, legal experts say. “I think it’s fair to say there was some concern about the liability of hyperlinks in the past, particularly where the hyperlinks themselves may contain defamatory material,” Peter Jacobsen, a partner with media law firm Bersenas Jacobsen Chouest Thomson Blackburn LLP, said in an interview. “The media no longer have to worry about that as a result of this decision.” The decision, issued Wednesday in the case of Crookes v. Newton, rejected an application to hold online content producers liable for defamatory pages linked on their websites. The primary question in the case was whether hyperlinks constituted a republication of the linked site’s contents—an argument the country’s highest court unanimously dismissed despite a pair of concurrent opinions. The court dismissed the application and noted that classifying hyperlinks as publications would “seriously” restrict the flow of information and freedom of expression. “The potential 'chill' in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control,” Justice Rosalie Abella wrote on behalf of the majority. The court said “hyperlinkers” should only be held accountable if they expressly reproduce the defamatory remarks or if endorse the remarks as true. “Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation,” Abella wrote. Fred Kozak, a partner at Reynolds, Mirth, Richards & Farmer LLP and president of the Canadian Media Lawyers Association, told The Wire Report that the decision is important to the online sites of traditional media outlets. As those websites increasingly use hyperlinks to direct their readers to additional content, it has become increasingly difficult to ensure linked sites do not contain defamatory material, he said. “I don’t know that they’ve been reluctant to do it,” he said of news outlets, “but this decision has removed an element of uncertainty that has been present for a number of years now.” Jacobsen, who has represented media outlets such as The Globe and Mail (owned by investment vehicle The Woodbridge Company Ltd.) and CTV (owned by BCE Inc.) and who helped the Canadian Journalists for Free Expression intervene in the case, agreed. “Anytime you could be held liable for what someone else writes, it could put a chill on your ability to refer to what they had written,” he said. “I can’t speak to how much the chill has resulted in not producing hyperlinks, but I think this will certainly embolden them in terms of feeling free to use hyperlinks even if it refers to defamatory material.” Andrew Potter, managing editor at The Ottawa Citizen, said he has not seen his newsroom express concerns about defamation when hyperlinking. He said the primary concern for online news sites like the Citizen is whether a linked page will offend readers. Readers often view a news site’s link to a page as “an endorsement of the news-worthiness” of the content, regardless of whether it is defamatory, he said. “To a certain extent, a newspaper like the Citizen has to be careful of what we say is newsworthy,” he said. “The stricter legal question always took a back seat to the more general question of: is this really where we want to send our readers to?” Potter noted that the Citizen’s online community bloggers are typically well-versed on the importance of double-checking their linked pages to ensure they don’t contain needlessly offensive content. Those bloggers also understand the difference between writing for a news outlet and writing for a personal blog, which tend to use hyperlinks more liberally, he said. “We already have protocols in place and our bloggers have understandings about the kinds of things that are appropriate to be writing about and linking to from a newspaper site,” he said. Jacobsen noted that the court did not give media websites or webmasters carte blanche to use hyperlinks. A concurring opinion penned by Chief Justice Beverley McLachlin and Justice Morris J. Fish left wide room for a webmaster’s comments about a link to land them in legal trouble. “There is a caution to be put out on all of this and that is that authors have to be very careful that, when they site these links, they do not do it with approval or with an encouragement to readers that what is contained in the link is truthful or reliable,” he said. Some online reactions to the decision seemed to declare a coming wave of hyperlinks to defamatory material, he noted. “I would hope those people would get legal advice and that their legal advisors would read this decision carefully,” he said. Crookes v. Newton stems from a 2005 incident that saw the defendant, Jon Newton, post hyperlinks to another website that contained potentially defamatory material about the plaintiff, Wayne Crookes, of West Coast Title Search Ltd. After a B.C. trial court dismissed the charges in a 2008 decision, an appeals court upheld that decision in 2009. Both courts held that hyperlinks, like footnotes on traditional documents, represent a reference to other content and not a republication of the information contained within. The Supreme Court maintained this view in its decision Wednesday. Newton, the administrator of the p2pnet.net blog and news website where the offensive hyperlink first appeared, wrote Wednesday that he felt “vindicated” by the Supreme Court’s decision. “‘Awesome’ is a word much-over used in the 21st digital century,” he wrote on his blog Wednesday morning. “But in this instance, it can be accurately applied.” nkyonka@thewirereport.ca

Supreme Court decision removes chill of hyperlink liability, experts say

Broadcast | October 19, 2011

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