“Hypertexts are like footnotes, not publication. If the link is to a defamatory or otherwise potentially illegal remark or content it should be the person who posted that remark, not any third parties, that are held responsible.
“I’m looking forward to reading specific transcripts, including whether the question of changed content will come up. The contents of what a hyper-link references can change over time, and it seems entirely unreasonable to hold a person providing a link responsible for content they may not even be aware of.”
Russell’s talking about Tuesday’s Supreme Court hearing when Wayne Crookes, erstwhile senior Green Party of Canada official who now runs West Coast Title Search out of Vancouver, tried to convince the nine Supremes that linking to a link that links to a link, and so on virtually ad infinitum, constitutes publication.
Scads of lawyers
It was quite an experience. The August HQ of the Supremes in downtown Ottawa, almost next door to parliament, is everything you’d expect — lots of wood panelling, people in flowing black robes, a massive coat of arms overlooking the chamber, and a long bench mounted on a dias where sit the nine justices.
Rows of pew-like seats separated by an isle provide spectators with somewhere to sit, and in front of them on both sides are desks with computer screens for the lawyers representing the parties.
On the right were a dozen or more lawyers — intervenors — whose job it was to speak up in favour of allowing links to continue linking as links, rather than ‘publications. They were flanked by 15 or so law clerks. For many of the attorneys, the bottom lines were their clients’ bottom lines — clients such as Google, Yahoo, eBay.
To their front were Dan Burnett and Harvey Delaney, speaking directly for me.
On the left was Crookes’ Supreme Court spokesman, Donald Jordan (Vancouver’s Bob Kasting has been advising Crookes since he first went after me in 2007), another lawyer, a Mountie and a court functionary.
And the hearing was one huge, and hugely expensive to companies and taxpayers alike, intellectual debate on a matter which really doesn’t need much thought at all.
Howard Knopf points out, in Excess Copyright, linking is, of course, “the basis of the internet.
He goes on >>>
If one cannot use links to other sites, in which the content can and often does change, and use the links merely as one would use a footnote, the Internet as we know it will simply cease to exist. I normally deplore “the sky is falling” arguments, as are currently so fashionable in Canadian music and publishing circles re Bill C-32. But in this case, the sky would fall if the Supreme Court of Canada reaches an unexpected result.
To hold otherwise would be equivalent making footnotes or references to any material that turns out to be defamatory themselves defamatory, even if there is no comment endorsing the material or conceivably if there were comment deploring it and analyzing why it is to be deplored.
The decision, if it goes the wrong way, could have clear implications for copyright law as well. This was addressed to some extent by the Supreme Court of Canada in SOCAN v. CAIP in 2004.
In a sense, it is curious that the SCC took this case because the outcome seems so inevitable and obvious. This makes one nervous because good lawyers NEVER can guarantee the outcome of case, and the British Columbia Court of Appeal was split on this one.
One hopes that the SCC will affirm the decision below and hold that linking to third party content without comment is not and cannot be by itself be considered to be “publication” for purposes of defamation law. While that seems obvious, it will be useful to have it affirmed from on high.
Howard, you can be rock-solid cast-iron, set-in-concrete certain that if the Supremes go the wrong way, which is to say they agree with Crookes, the fuss you see over Julian Assange’s revelations will seem as nothing in comparison.
There’ll be a vast online revolution.
And Russell? The matter of contents of a hyper-link references changing over time did indeed come up. A number of times.
Said Jeffrey D. Neuburger in PBS Media Shift, a US site, in 2008, “Crookes’s involvement in and supposed ‘takeover’ of the party was the subject of three articles on the Canadian-based Open Politics website and another on the (apparently now defunct) usgovernetics website. Claiming that the articles were defamatory, Crookes filed a lawsuit against Michael Pilling, the Canadian editor of the Open Politics site.
“Some time later, Jon Newton, founder of digital news website p2pnet.com, wrote about the litigation on his website, including hyperlinks to the allegedly defamatory articles on the Open Politics and ‘usgovernetics’ websites.”
Actually, there are a couple of mistakes in the post. It’s p2pnet.net, not com, and I didn’t write about the litigation; I merely linked to another site without any kind of comment, which is kind of the point.
Be that as it may, added the post >>>
Let us suppose that Crookes succeeded in obtaining a judgment against a U.S.-based service provider and sought to enforce that judgment in the U.S. Would a judgment rendered by a court in Canada be enforced by a U.S. court? A U.S. court might reject such a judgment on the basis that the First Amendment affords the speech of U.S. citizens greater protection than does the law of many other nations. To the extent that a judgment issued by a foreign court might violate the First Amendment rights of a U.S.-based defendant, a U.S. court might find that it is against public policy to enforce it. That important issue has been touched on in several U.S. cases but has not yet been answered.
So that’s it, for now anyway.
It could be a year before the SCC publishes its decision and while we wait, my deep and sincere thanks to Dan Burnett for not only being my lawyer now, and in the past, but for also being a friend.
Thanks also to Harvey Delaney, his colleague, who stood up for me on Tuesday, and Vancouver’s Owen Bird Law Corporation, with whom Dan and Harvey practice.
Click here for Twitter tweets.
And stay tuned, although it may take a while.
Jon Newton – p2pnet
virtually ad infinitum – Wayne Crookes: Epic Fail, December 8, 2010
Excess Copyright – Crookes v. Newton – some useful links and “break a leg” & Long Live Links!, , December 6, 2010
PBS Media Shift – Canadian Court Rules Linking to Libel Isn’t (Necessarily) Libel, November 13, 2008
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
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