Remember the criminal hyperlink? Released on bail for now …
In “Hyperlinks not considered ‘publications,’ rules Supreme Court” (Canadian Lawyer/Law Times blog, October 19, 2011), Gail J. Cohen reports,
Hyperlinks on web sites, in and of themselves, are not considered “publications” and therefore cannot be defamatory, the Supreme Court of Canada ruled this morning.
Justice Rosalie Abella ruled that hyperlinks on web sites are more ‘references’ than ‘publications.’ Photo: Heather Gardiner
In the case of Crookes v. Newton, Justice Rosalie Abella writing for the majority of the nine-judge panel, states: “Hyperlinks are, in essence, references, which are fundamentally different from other acts of ‘publication.’
“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,” says the decision.
The decision may be appealed, of course. And the current situation is wide open for other national judiciaries to take a different approach. For example, Abella writes for the majority:
She goes on to point out that: “The Internet cannot . . . provide access to information without hyperlinks. 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.”
She assumes that is a bad thing but not everyone thinks so, and the Internet fulfils only a part of its promise if it is not global.
So this is best seen as a temporary setback for the social engineers who could never build an Internet and can’t give up on the dream of controlling one. For your own good of course.
Yes, they’re still out there.
See also: The criminal hyperlink and how it affects you
Italian Wikipedia may shut down due to new laws against “giving offence”?
Hat tip: Five Feet of Fury