Crookes v. Newton and its implications for Internet freedom
By: Samuel Greene
On October 19th, the Supreme Court of Canada ruled in Crookes v. Newton (Crookes) that posting a hyperlink to a defamatory website does not in itself constitute defamation. This decision was hailed as a victory for Internet freedom and the rights of bloggers. Students, who frequently use social media to view and disseminate hyperlinked content, have responded particularly positively. And yet, while I agree that Crookes does provide some measure of protection for free speakers on the Internet, the scope of its potential application has been either exaggerated or misattributed.
So what was Crookes about? Currently, to publish defamatory material is to commit defamation, whether or not one is the material’s author. The case, therefore, questioned whether a hyperlink constitutes publication. In the end, the court ruled that they do not; rather, hyperlinks are more analogous to footnotes since they simply make reference to another source, but do not repeat or copy it.
Supreme Court Justice Ian Binnie argued that applying a traditional standard to hyperlinks would place an undue burden on anyone posting them. The linker has no control over the content of the site they are linking, so it would be unfair to make them legally liable for it. Furthermore, the potential liability might dissuade individuals from posting links to controversial content, thereby precipitating a “chilling effect” on free speech. Protecting bloggers, Tweeters and status-updaters from legal action resulting from the content of their hyperlinks protects the free flow of information on the Internet. Hence the presumed victory for freedom of expression.
However, the protection of content linking that Crookes has extended is more limited than the blogosphere and mainstream media seem to believe. Some argue that this decision might serve as a precedent for cases in which copyright holders demand payment for publication of links to reproductions of their media. The implication of Crookes, so the argument goes, is that sites like HypeMachine – which aggregate music content through linking – would be exempt from liability for copyright infringement.
But Crookes does not extend an absolute protection to speech propagated by hyperlinking. Chief Justice Beverley McLachlin stated that “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.” Music and video aggregation tends to much more explicitly endorse and adopt copyright infringement than do passive hyperlinks to defamatory content.
The Court clearly understood the Internet’s capacity for expression and information distribution, and that the medium has “tremendous power” to do harm. On that note, the Court is not endorsing an unrestricted right to hyperlink just any content. Indeed, in this case, the Supreme Court grappled with the profound problems posed by the Internet to traditional protection of information and limitations on speech; such approaches do not quite fit the realities of Internet communication and the expectations that people have about it.
As Madame Justice Abella writes, “Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.”
Yet advocates for Internet freedom should not read too much into the Crookes decision.Although it is difficult to come to grips with how to fairly and appropriately regulate speech on the Internet, it is obvious that some rules are necessary, and the Supreme Court will work to that end.
As much as Twitter users might like to believe that they have a right to write whatever they want, the world will be a worse place if they’re actually allowed to.
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