By Ryan McGreal
Published October 19, 2011
The Supreme Court of Canada has ruled that a hyperlink is a reference to a document, not a republication of that document.
In a landmark decision on the longstanding Crookes v. Newton lawsuit, Justice Abella concluded: "a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers."
In the original suit, Wayne Crookes and West Coast Title search Ltd. claimed that Jon Newton published defamatory material about Crookes by posting a hyperlink to two articles published elsewhere that Crookes considered defamatory.
If, as Crookes contended, the mere act of linking to a published document constitutes a re-publication rather than a reference, the legal ramifications would be enormous - not only in terms of liability but also in terms of copyright.
In the original 2008 trial, Justice Kelleher determined that the hyperlinks "were analogous to footnotes since they only refer to another source without repeating it."
The suit was also dismissed by the Court of Appeal for British Columbia, in which Justice Bauman did not see any "encouragement or invitation" to view the allegedly defamatory content, but merely a reference "analogous to a footnote or a card index in a library and should not be found to constitute republication of the defamation."
However, Justice Prowse dissented, arguing that "the context of Mr. Newton's article suggests that readers were in fact encouraged or invited to click on the links." Crookes appealed the decision to the Supreme Court.
In writing the decision, Justice Abella reasoned: "A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists."
The decision also drew reference to the "centrality of the role of hyperlinks in facilitating access to information on the Internet" and that restricting the use of hyperlinks "would have the effect of seriously restricting the flow of information and, as a result, freedom of expression."
Newton's defence was supported by a number of organizations: Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, NetCoalition, British Columbia Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, Writers' Union of Canada, Professional Writers Association of Canada, PEN Canada and Canadian Publishers' Council.
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