Text, hyperlinks and defamation

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A unanimous ruling from the Supreme Court of Canada will permit hyperlinks to defamatory material.

Here’s the meat:

Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

The majority of the SCC held that hyperlinks are, in effect, only directions, and are content-neutral.

I like the effect of this ruling, but, being somewhat of a pedant, I’d quarrel with the SCC’s simplistic notion of what constitutes a text. Clearly hyperlinks form part of the text in question, and are meant to be followed. We’re dealing with a hypertext, in other words, and the content to which one is directed is an integral part of it.

But the justices were right to close this Pandora’s Box in any case. The legal burden that this would have placed upon Internet authors was onerous in the extreme.

Justice Marie Deschamps, however, went into things a little more deeply, and, differing with her colleagues, sounded a note of caution:

In the common law of defamation, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood….

Here, N acted as more than a mere conduit in making the hyperlinked information available. His action was deliberate. However, having regard to the totality of the circumstances, it cannot be inferred that the first, shallow hyperlink made the defamatory content readily available. The various articles were not placed on N’s site’s home page and they had separate addresses. The fact that the reader had to take further action in order to find the defamatory material constituted a meaningful barrier to the receipt, by a third party, of the linked information. The second, deep hyperlink, however, did make the content readily available. All the reader had to do to gain access to the article was to click on the link, which does not constitute a barrier to the availability of the material. Thus, C has satisfied the requirements of the first component of publication on a balance of probabilities where this link is concerned. However, the nature of N’s article, the way the various links were presented and the number of hits on the article do not support an inference that the allegedly defamatory information was brought to the knowledge of some third person. The defamation action with respect to either of the impugned hyperlinks cannot succeed. [emphasis added]

In other words, if you deliberately link to a defamatory article, and it can be demonstrated that people actually followed that link and read the defamatory words, an action against you may succeed. I don’t see that the other justices directly spoke to this specific point, although Morris Fish and Beverley McLachlin seem to approach the question indirectly in para. 48:

…Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. [emphasis in original]

Conceivably one could argue that deliberateness is close to “adoption or endorsement.” Is the matter, at least in this respect, still open? Expert legal advice is welcome (and I’m looking at you, Jimmy Durante and Marky Mark).

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This page contains a single entry by Dr.Dawg published on October 19, 2011 1:24 PM.

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