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Canada Your Rights Online

Canadian Supreme Court Rules Linking Is Not Defamation 88

Posted by Unknown Lamer from the keep-those-anchors-polite dept.
omega6, joining the legions of accepted submitters, writes "The Supreme Court of Canada ruled that posting links is not the same as posting the actual content, but more similar to a footnote. 'The top court ruled against former Green party campaign manager Wayne Crookes, who argued that posting links to sites with defamatory statements was the same as publishing the defamatory material.'"
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Canadian Supreme Court Rules Linking Is Not Defamation More

Canadian Supreme Court Rules Linking Is Not Defamation

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  • Hmm (Score:5, Funny)

    by somersault ( 912633 ) on Wednesday October 19, 2011 @11:46AM (#37763082) Homepage Journal

    I can't remember the URL for goatse.cx, or I'd totally post it.

  • Finally some sense. (Score:5, Interesting)

    by sherriw ( 794536 ) on Wednesday October 19, 2011 @11:46AM (#37763096)

    Hopefully this extends to the fact that linking to pirated content is not piracy.

    • Sure, in Canada.

    • It shouldn't. The crux of the ruling is that the content can change, and even if it doesn't there's no evidence that you read every last word on the page. Therefore, just posting a link to a site that says something defamatory doesn't constitute republishing or endorsing that statement. However, if you have a content aggregator, it's pretty damn obvious exactly what it's linking to. Because it's not just presenting links to some all gibberish URL, it's naming that link after the copyrighted content at t

    • Sorry but this ruling only applies to liable and defamation suits.

      • Re: (Score:2)

        by Moryath ( 553296 )

        The terms you're looking for are:

        Slander [reference.com]
        Libel [reference.com]
        Defamation [reference.com]

        Now, you may be liable [reference.com] for some form of damages/action in a civil lawsuit thereby...

        Getting back to the root of the issue - Canada doesn't have proper free speech protections (as the abuses by their so-called "human rights commission" [wikipedia.org] indicate). That's what makes such a seemingly minor court case seem so important - the protection of unpopular speech from repressive government action or repressive action by determined individuals does not exist in Canad

  • Aggrigation Sites (Score:4, Insightful)

    by arthurpaliden ( 939626 ) on Wednesday October 19, 2011 @11:50AM (#37763148)
    So then a link to a copyrighted work would just be a foot note and not copyright infringement. Time for all those aggregation sites to move to Canadian ISPs.

    • Yeah you should be able to legally run a torrent tracker by basically inserting something like the TPB interface as the references section of lorem ipsum.

    • Probably not as this judgment only applies to liable and defamation cases.

      • Re: (Score:1)

        by Anonymous Coward

        s/Aggrigation/Aggregation/g
        s/liable/libel/g

  • How I love thee, let me cite[1],[2],[3] ways...

    Somehow I just don't think that'll work, come Valentine's Day...

  • If Crookes did this in association with the party, then fuck them. They're just like the rest. Their record on internet freedom isn't exactly outstanding. The stand they took a few years back in favor of filtering in Australia is a case in point. Either way, I don't trust them as far as I can throw them.

    • What has being "green" got to do with Copyright law?

      • Less law = less paper?

      • Did you skip the summery? The plaintiff in this case was a former campaign manager for the Green Party of Canada.

        Also, copyright reform is a significant part of the Green Party of Canada's platform.

      • What has being "green" got to do with Copyright law?

        Not much. Of course, this is the party that is eager to clamp down on wifi, saying they want "Health Canada create enforceable, biologically-based regulations, that would limit human exposure to radio frequency radiation to a precautionary limit of 0.1 uw/cm2 (or 0.614 v/m ) for cumulative outdoor exposure". I thought the Sun output more than that, but I could be wrong.

        Also, there's this amusing tweet: http://twitter.com/#!/ElizabethMay/status/96091744 [twitter.com]

      • I made no mention of copyright. The issue is enforced filtering and general freedom of speech. Besides, the Australian deal was over pornography [theaustralian.com.au]. The author of the link was running for some position under the Green Party.

      • Re: (Score:2)

        by Quila ( 201335 )

        Nothing about copyright law.

        But the Greens do support "hate speech" laws, which would reasonably fall under this ruling. You could link to "hate speech" but not post it yourself.

    • Re:Which side were the Greens on? (Score:5, Informative)

      by Retardical_Sam ( 1002763 ) on Wednesday October 19, 2011 @12:11PM (#37763452)
      The case had nothing to do with his association to the Green Party, it was in relation to his private business. http://www.cbc.ca/news/politics/story/2011/10/19/pol-scoc-hyperlink.html?cmp=rss [www.cbc.ca]

      • Well, I only asked because the Greens were mentioned in the summary and various articles. However, I think it's important to know where the Greens stand on such issues before they are given any real political power. In matters of verbal communications, it's the listeners that should be held responsible for their reactions to anything being said.

      • However, the guy is a member of the green party. If he thinks that linking to something is the same as publishing it, I would not want him near any position of power. Hence, I would only consider voting for the greens if they expelled him from the party (and if I were German).

        • Crookes "resigned" (more a case of "you can't fire me, because I quit") from his position in the Green party back in 2006 and he was never a parliamentary candidate for them. He was their head campaign manager from 2000 til his resignation.

    • Re: (Score:2)

      by Anonymous Coward

      You think the Green Party of Canada has the same platform as the Green Party of Australia?

      • History shows that all political parties become more corrupt with increased acquisition of power. I've watched the Greens in various countries, and the alliances they make are less than palatable. And people being people, there's really not much to differentiate no matter where they are from.

    • Re: (Score:1)

      by Anonymous Coward

      They're just like the rest

      They are authoritarian statists. Unless you're in high school you should have figured that out already.

  • Comment removed based on user account deletion
    • No.

      However, if a post linking to another site itself contains defamatory material, the poster may be liable in a defamation action.

      • Comment removed based on user account deletion

      • No.

        However, if a post linking to another site itself contains defamatory material, the poster may be liable in a defamation action.

        How about http://www.example.com/john-is-a?compulsive=not&liar=no [example.com] pointing to a page with derogatory statements? Would that fly?

        • If your link, or any other part of the page your link is on, suggests you endorse or support the defamatory page, you could be nailed for libel. It's in the decision.

          • If your link, or any other part of the page your link is on, suggests you endorse or support the defamatory page, you could be nailed for libel. It's in the decision.

            Hence the question. Vars compulsive=not and liar=no. I'm wondering what case law will be derived from this, now, before it happens.

            • Well, since most people aren't even going to notice the URL, I don't think it'll come up. Much more important will be the content of the page. But if the plaintiff can use the URL string to impute an intention to defame or an endorsement of the defamatory page, then they might win.

    • If we following the footnote analogy, then this is equivalent to a footnote to a book with a defamatory title. Citing such a book is probably protected, but creating a made up title for the purpose of defaming someone might not be defamatory.

    • Re: (Score:2)

      by wrecked ( 681366 )

      Does this protect http://www.example.com/john/is/a/compulsive/liar [example.com] ?

      This is implied by the separate but concurring judgment. The Chief Justice writes: "In sum, in our view, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to." Crookes v Newton (2011 SCC 47) [canlii.ca] at paragraph 50.

    • NO. It does not protect you if the defamation/libel is in the link. From the Toronto Sun [torontosun.com] article on the matter:

      “The Internet, in short, cannot provide access to information without hyperlinks,” wrote Justice Rosalie Abella. “Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and as a result, freedom of expression.”

      While the decision was unanimous, two justices warned that framing or endorsing the link as the truth or accurate could still land an Internet linker in court.

      “Combined text and hyperlink may amount to publication of defamatory material,” wrote Chief Justice Beverly McLachlin and Justice Morris Fish. “If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content.”

  • The Crookes vs Newton case, Newton runs the site p2pnet were the link was posted.

    http://www.p2pnet.net/ [p2pnet.net]

  • Set up a website anonymously with whatever content you want on it and then link to it, now it's not yours but you are essentially saying it anyways.
    www.republicancandidatesmomisadirtywhore.com hey i'm just linking it, i didn't call this guys mom a whore!
    • In order to really protect yourself the site would be www.republicancandidatesmomisadirtywhore.ca and be hosted in Canada.

      • You'd also need to live in Canada. CIRA has presence requirements for obtaining a .ca domain. Basically, to get a .ca domain, you either need to be a Canadian citizen, a permanent resident, a native, an Indian band, a corporation registered in Canada, hold a Canadian trademark, be the executor/agent/etc. for someone of the above, or be the Queen.

        • RE: CIRA has presence requirements for obtaining a .ca domain

          So does the DISH satellite TV provider.
          I see those dishes on roofs in Canada. too.

    • I think truth factors into the legality of content. Posting links to corroborate an article pushes it into public domain.
      www.uncannyiscorrect.com/republican_candidates_moms_are_dirty_whores.html

    • No, the ruling still allows for a link to be defamatory if the intent is apparent. The reasoning behind the ruling is that if you link to a page, it can be changed by the host so it is senseless to view the link as your endorsement of all past and future content. Say, you link to a guy's blog and he makes a defamatory post after you link to it. Or, you link to it because you like what he said today, but further down on the page you linked he has defamatory posts you didn't notice.

      However, ruling that

    • This is exactly what every single news show does. They get other people to say things, then claim they didn't say it, it it just news that some one else said it. News people do not get arrested for slander for reporting that someone else slandered a Senator with claims of adultery - even if the Senator is innocent.

      Your method is NOT an easy way to abuse this. If you can set up a website anonymously, then you host your main website there. The crime is still committed, and is still just as hard to do.

      • Ironically, your newspaper example wouldn't have worked that way in Canada, up until Grant v. Torstar, [2009]. Previous to this, it certainly was possible for the reporter to get hit with a libel suit for reporting libelous statements. The new law under Grant sets up a new defence called responsible communication. The reporter or newspaper (or blogger) must still behave responsibly when reporting proven libelous statements made by others and must show that she acted responsibly, with the following factors t

  • ... deserves a mention here: https://thaipoliticalprisoners.wordpress.com/pendingcases/joseph-gordon/ [wordpress.com] (Yes this is Canada, not Thailand)

  • But we're still running way behind!

  • A court aknowledging that linking and publishing is different will be a strong point for arguments in the rest of the world with less tech-savvy people. I hope we can get more courts in more countries to think the same way. And then get rid of those defamation laws as well.

  • What about IFRAMEs and linked images? (Score:3, Interesting)

    by mdmkolbe ( 944892 ) on Wednesday October 19, 2011 @01:03PM (#37764056)

    Technically IFRAME and IMG are just links, but would they qualify as a more affirmative action and thus constitute defamation under this ruling?

    • Re: (Score:2)

      by Rary ( 566291 )

      Technically IFRAME and IMG are just links, but would they qualify as a more affirmative action and thus constitute defamation under this ruling?

      The point isn't just that it's a link, but a link to someone else's content. If your IFRAME or IMG tags are pointing to someone else's content, then this ruling would apply. If, however, they linked to your own content, then don't try to use this ruling as your defense, because you will lose.

      • How about iFrames that link to different sites and only get partial information and mix them together to create a brand new message.

  • From the link:

    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

    He only got off because it was unlikely that anyone actually clicked the link. If his page had more hits, or someone in the court knew about logging referrer headers, then he may well not have gotten off.

    • Re: (Score:1)

      by Anonymous Coward

      That's from the minority judgment of Madam Justice Deschamps. While it's interesting context, the most relevant legal interpretation is the one that was endorsed by six judges and written by Justice Abella - which held that hyperlinking is not publication, simple as that.

    • Re: (Score:1)

      by tbarrie ( 125473 )
      The part you quote is from a minority opinion. The majority decision was that linking to content does not constitute publication of that content, period.

  • Hyperlinks are about as complicit in libel as ears are complicit in slander. Both provide access to the defamation in question, but neither are the defamation itself!

  • It's about time one of the higher-ups here formed a rational opinion on this!

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