Supreme Court Hypertext linking decision
Ontario appeals court judges Andromache Karakatsanis and Michael Moldaver have been nominated to fill vacancies at the Supreme Court of Canada left by recently retired justices Louise Charron and Ian Binnie, who last December were part of the panel hearing the controversial hypertext linking case.
And this coming Wednesday morning Canadians will discover whether or not one man can freeze the Internet in this country.
Vancouver businessman Wayne Crookes (left) tried to have the decision by BC Appeals Court judge Stephen Kelleher that linking is not the same as publishing reversed.
The ruling will “probably turn out to be round one of the battle between Vancouver businessman and ex-Green Party of Canada official Wayne Crookes, and those of us who believe freedom of speech online is a right, not a privilege”, I’d posted in p2pnet , going on >>>
I’ve been congratulated as though I had something to do with the ruling. But of course, I was just an innocent, spectator. The person who deserves the praise and kudos, and all of the credit, is Dan Burnett, the Vancouver lawyer who acted for me, and who’s also looking after some of the other people Crookes is attacking.
Meanwhile, I, Ottawa law professor Michael Geist, Google, Wikimedia, Pbwiki, Yahoo, MySpace, Openpolitics.ca, Domains by Proxy, Michael Pilling, Hayley Easto, Kate Holloway, Craig Hubley, Frank Cameron, Catharine Johannson, Gareth White and anonymous persons were all sued by Crookes.
The difference was: my case was the only one in which illegal linking, as Crookes tried to have it defined, was the charge.
He was subsequently given permission to appeal it to the Supreme Court of Canada.
And if you’ll forgive me for quoting myself once again, “Wayne Crookes and Julian Assange,” I posted last December immediately after the Supreme Court hearing in Ottawa, “both made major contributions in proving the net is rapidly becoming THE news and information dissemination vehicle of the 21st digital century,” I said, going on: “Assange in a positive sense, and Crookes in a distinctly negative one.
“Assange spreads the word online.
“Crookes wants to shut it down.
“He claims linking to a story is the same as publishing it and tried to get me to yank a link to an item he said defamed him.
I refused, so he sued me.
“A former senior Green Party of Canada official, Crookes’ earlier assertions that his name had been sullied reached only a very few people, relatively speaking”, I wrote, adding, “Now millions of people know him as the man who tried to turn the net in Canada, dark.
As I said to Dan Burnett, my pro bono lawyer immediately after yesterday’s hearing, justice Louise Charron pulled it all together when she stated >>>
It seems to me that if we accept the position you’re putting forth [Crookes' lawyer] , then 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, and I cannot afford it : We’re sentencing the hyperlink to death, it seems to me.
What will the decision be? I wondered.
I believe they’ll go along the lines of BC Supreme Court judge Stephen Kelleher’s earlier ruling that website owners aren’t responsible for defamatory content on other sites to which they’ve linked.
Meanwhile, “However, if the linking website endorses the material or encourages readers to go to the linked site, the linking site may be liable because that might constitute publication,” Kelleher said.
So stay tuned, or head over to the SCC site, in which case you’ll know the result before I do, given that I live way over on Vancouver Island 
http://scc-csc-gc.insinc.com (streamed video of the hearing) /en/clip.php?url=c/486/1938/201012070500wv150en,001Content-Type:%20text/html;%20charset=ISO-8859-1 /1938/201012070500wv150en,001
Also see Wayne Crookes vs Jon Newton
Jon Newton - p2pnet
October 17th, 2011 at 7:33 pm
Head over to where?
October 17th, 2011 at 8:08 pm
“Head over to where? “—> the (SCC) Supreme Court site
Cheers!
October 18th, 2011 at 11:37 am
” Meanwhile, “However, if the linking website endorses the material or encourages readers to go to the linked site, the linking site may be liable because that might constitute publication,” Kelleher said. ”
This is no better.
What constitutes ‘endorsing’ ?
Is saying ‘read the whole story here .. ‘ followed by a link enough to be considered and endorsement ?
It seems like ‘encouraging readers to visit’ well enough.
For the court to rule in this way would be disastrous and cowardly.
October 18th, 2011 at 1:18 pm
I can see both sides of this. Linking to defaming material on another site could be viewed as “spreading the word”, so to speak. Party-A says something negative and untrue to Party-B about Party-C. Party-B then goes around telling everyone else. Even so, I think it is pretty obvious that if Party-B, whom is a third party, is going to be sued for defamation, some serious questions must be answered first. For example, did they know that what Party-A said was defaming? Was Party-B spreading defaming opinions knowingly with malicious intent, or was it an innocent mistake? Did Party-C put in any effort to contact Party-A and Party-B in an attempt to cordially request the defaming material be removed before taking it to the court? While that last bit isn’t entirely necessary, it can reflect negatively upon the intentions of Party-C in the eyes of a good, unbiased judge. An effort should always be made to correct any unpleasant situation in a civil and polite manner before potentially wasting the courts time and taxpayers money. It is the adult thing to do after all, or at least should be. People tend to act like irresponsible children more often than not, regardless of their age. Likewise, those whom are a third party must also be reasonable by informing people of their mistake, usually in the form of a retraction and apology. You may not like doing it, but it isn’t going to kill you to act responsibly and take the high road. Heck, doing so may even help your case later on if you do find yourself in court. Put the civil back into civilization I say.
On the other hand, holding a third (and potentially fourth) party liable is fraught with problems. What if Party-B links to something written by Party-A about Party-C, and doesn’t know it is defaming? How are they supposed to know? And just because something you linked to may have defaming content doesn’t automatically mean said content in its entirety doesn’t still have value. Then there is the question of what happens when Party-B links to something published by Party-A which isn’t defaming any parties at all, and then Party-A changes what’s written to something that is defaming at a later date. Is Party-B supposed to check all of the links they ever have and ever will publish, every hour of every day, in the potentially vain hope of remaining relatively safe? That is pretty unreasonable for obvious reasons. The only way to be 100% sure is to not only never post any hyperlinks ever again, but never mention articles on other sites either. If everyone were to do that out of fear of being sued, the internet could come to a complete and utter end. Talk about the chilling effects of free speech! You really can’t get much more chilled than that. Even if it were only Canada to set such a precedent, the potential damage to our economy and competitive edge could very well be enormous.
These are the two sides the judges have to consider. Both may have merit (or not depending on your own views), but in the end they will still have to decide which one serves the greater good. Sticks and stones versus free speech and the Canadian economy. The former may also claim defamation to be just as damaging, but it still boils down to the individual person or business versus the well being of Canada and/or everyone on the planet. If they are at all unbiased, intelligent, logical, and reasonable, they will rule in favor of the latter. Sadly, most humans tend not to display any of those attributes in abundance, especially in this day and age where pettiness, vindictiveness, irresponsibility, and greed seem to be at an all time high. I weep for the future of our children.
October 18th, 2011 at 2:09 pm
Wow Jon,
this looks like the end of the legal road, hopefully in a good way. Praise to you for sticking to your guns on this one. I think the free world (or at least the Canadian part of it) owes you a beer. Each.
October 18th, 2011 at 5:48 pm
thanks, Michael
http://www.p2pnet.net/story/12023
http://scc-csc-gc.insinc.com/en/clip.php?url=c/486/1938/201012070500wv150en,001Content-Type:%20text/html;%20charset=ISO-8859-1 (Streamed video)/1938/201012070500wv150en,001
October 18th, 2011 at 9:28 pm
Supreme Court to rule on hyperlink libel case
http://www.cbc.ca/news/technology/story/2011/10/18/supreme-court-defamation-hyperlink-decision.html
October 19th, 2011 at 10:57 am
The Supremes got it right. Appeal dismissed!
http://scc.lexum.org/en/2011/2011scc47/2011scc47.html
October 19th, 2011 at 11:05 am
It certainly looks to me as though you have won, Jon. Check here: http://scc.lexum.org/en/2011/2011scc47/2011scc47.html
Quote: “Held: The appeal should be dismissed.”
Jon, I think you should be proud of your part in this, it has clearly taken a toll on your life but you have done a great thing and you are part of the story of the Internet now.
October 19th, 2011 at 11:22 am
Jon, Liz and everyone else, grab a bottle of bubbly and go to town!!! The Supreme Court has decided UNANIMOUSLY, yes I said, UNANIMOUSLY that INTERNET LINKS ARE NOT LIBEL. Man, I’d love to see ol’ Crookes face this morning when he gets the decision. It should wipe the smug look off his face once and for all. He gambled the whole wad and came up craps. Here’s the link to the decision and now it’s safe to say, “CONGRATULATIONS TO JON and his lawyer who stood up for Freedom of Speech against a bully, who thought that he could say that linking to a story that put him in unfavorable light was the same as publishing.
Logan
http://www.cbc.ca/news/canada/story/2011/10/19/pol-scoc-hyperlink.html
October 19th, 2011 at 11:27 am
Congrats Jon!
http://scc.lexum.org/en/2011/2011scc47/2011scc47.html