The City of Hamilton website acceptable use policy currently prohibits third parties from publishing, copying, linking or otherwise making use of website content without prior written permission. Staff recognize this needs to change.
By Ryan McGreal
Published April 01, 2011
this article has been updated
This article violates the City of Hamilton's website Acceptable Use Policy. Among the many stipulations and restrictions in the policy is a blanket ban on linking to pages on the City website without prior written permission. The section reads:
Unless prior written permission is obtained from the City, the Content's owner and the City's licensors, You may not reproduce, publish, copy, link to, frame, tag, embed, merge, modify, recompile, license, distribute, sell, store in an electronic retrieval system, download (except by the browser of a single user) or transmit, in whole or in part, in any form or by any means whatsoever, be they physical, electronic or otherwise, the Portal and/or the Content.
If you're keeping track, you will notice that I've just committed another violation. In citing the relevant policy, I have copied content from the City website "in whole or in part", which is also prohibited.
The good news is that the City is aware of this and has plans to revise the policy. In response to a request for clarification on the policy, City Solicitor Peter Barkwell confirmed that it was written several years ago for the original myhamilton.ca site, and that city staff are "aware that the acceptable use policy may be outdated".
Noting that the myhamilton.ca has since moved under the control of Hamilton Public Library, Barkwell added that "a revamp" of the policy "is still at the preliminary stages."
In the meantime, Barkwell says he is "unaware of any ongoing enforcement issues arising out of this policy." He suggests that anyone who is concerned can contact the information services department, which is responsible for the City website.
Unfortunately, this presents another challenge. The information services web page does not actually list any contact information for anyone in the department.
On a recommendation from Barkwell, RTH contacted Glenn Brunetti, the manager of service delivery in the City Manager's office, to seek clarification on whether his office intends to start enforcing the Acceptable Use Policy.
Noting also that a review of the website policy is underway, Brunetti added, "We are looking at the City's site holistically and developing a single plan that ensures the top tasks that citizens are trying to do online are easy to do and accessible."
Staff are developing "consistent standards, metrics and modernized policies" for the site and will present a plan to council "in the coming months."
This seems ridiculous - after all, linking is the foundational technology of the world wide web - but the fact is that we are in uncharted legal waters.
The problem, in Canada, is that there is no legislation governing the legality of various internet-specific activities, like hyperlinking and so on. That has left the courts to decide how to handle conflicts over what is allowed and set legal precedents on a case-by-case basis.
A case in front of the Supreme Court of Canada right now hinges on whether linking to a web page constitutes citation or republication. In this case, the plaintiff has accused the defendant of defamation for linking to web pages the plaintiff argues are defamatory.
Previously, the Supreme Court of British Columbia decided that simply linking to a defamatory web page does not constitute defamation, unless the link is provided for the purpose of endorsing the defamatory material.
I am not a lawyer, but it seems to me that if the Supreme Court of Canada decides a hyperlink to a web page qualifies as republication, every link becomes not only a potential defamation liability but also, more worryingly, a potential copyright infringement. This would be catastrophic for a free internet.
In terms of linking to and using public data, another issue that may legally limit the City's ability to restrict what third parties do with information published on the City website is the Municipal Freedom of Information and Protection of Privacy Act. MFIPPA explicitly grants every person "a right of access to a record or a part of a record in the custody or under the control of an institution" as long as that record does not fall under a "limited and specific" list of "necessary exemptions" - in which case it would not be published on the City's website.
It seems ridiculous from a legal standpoint that one might have to file a a Freedom of Information request under MFIPPA to publish, let alone reference, legally public information that is already published on a municipal website.
Information "owned" by the City of Hamilton that is not specifically exempted from publication due to privacy issues is by law accessible to the public. I would be most surprised if an acceptable use policy on the part of the City that tries to restrict what the public can do with public information would hold up to a legal challenge.
Update: Glenn Brunetti has responded to RTH, and we have included his response in the body of this article. You can jump to the changed paragraph.