Linking is Not Defamation in Canada
Last week, British Columbia Supreme Court Justice Stephen Kelleher delivered a landmark decision affirming the use of links in online speech in Canada. It was distinguished in its absolute sensibility.
Vancouver businessmen Wayne Crookes, once an important federal Green Party of Canada official, sued Jon Newton, the operator of p2p.net, for linking to four articles that Crookes alleged were defamatory.
In Crookes v Wikimedia Foundation Inc., 2008 BCSC 1424, Justice Kelleher ruled that a simple link to a defamatory article this does not amount to republication. The defamation was contained in the article, not in the simple act of pointing to it.
Justice Kelleher’s ruling drew a parellel between links and footnotes in printed articles.
“Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided.”
Further, he recognized that link text could support defamation, but that simple linking does not.
“It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written “the truth about Wayne Crookes is found here” and “here” is hyperlinked to the specific defamatory words, this might lead to a different conclusion.”
Linking is a footnote; it is a signpost pointing to a viewable object. I’m glad to see it supported as part of Canadian free speech. I’m also glad to see that the few websites with policies asserting they can prevent other sites from referencing them through links receive ridicule for their attempts to govern references to them.
As Mr. Newton noted, “They’re links, the genius of the Net.” Allowing the public to refer to publically posted materials with links affirms a rudimentary function of the web.
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