By Brian Jackson
This week the Supreme Court of Canada decided that it would not make a ruling that would irrevocably harm the Internet, be impossible to enforce, and likely be ignored by all normal people who use the Internet.
To elaborate, the court delivered its ruling in the case of Crookes v. Newton, of which the central question of the case was whether a person could be liable for linking to defamatory content. It decided that it was not defamation because a link is not really publication, but just a digital reference that allows for someone to reach the original published material. For a more detailed description of the legal implications of the ruling, Michael Geist’s blog post lays out the important details well.
I’d like to instead imagine an Internet where the Supreme Court had somehow ruled that hyperlinks could be deemed defamatory. Defamation is any communication diminishes the reputation of a person in the eyes of those receiving the communication. It serves as a handy way to keep journalists honest, since committing defamation is grounds for being sued. But a journalist can defend against this by saying they told the truth, or even by proving they took reasonable measures to verify that the information was accurate.
So certainly an article can be defamatory, but a link pointing to that article is just a direction on how to get there and it’d be ridiculous to consider it defamatory. Consider this scenario in a non-Internet context: there is a defamatory article printed in a daily newspaper that sits in a box on a street corner. You are talking to your friend and he tells you to go and pick it up so you can read the article because it is really juicy and controversial. You do so and are exposed to the defamatory article – has your friend now also committed defamation? Of course not, they haven’t published anything.
Beyond the real world analogy, if the court had for some reason ruled that hyperlinks were considered defamatory, then it’d be impossible to enforce or even competently handle in the court system. Since defamation is a matter of civil law, not criminal, the police don’t actively chase down defamers. Instead, an individual may sue another person for defamation. That would mean that every hyperlink that points to a potentially defamatory article would be grounds for a lawsuit.
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With the viral nature of social networks today, links are rapidly shared by many people. All it takes is a click of that Re-Tweet button on Twitter or Share button on Facebook to repost the link. Would all of the people who retweeted a link to defamatory material also be liable for defamation? You can see how litigation would become a nightmare.
Indeed, if the Supreme Court had ruled differently I believe that mischievous netizens would have quickly concocted some sort of massive link exchange of a defamatory nature, just to show how silly the whole notion of policing links really is. Probably involving anonymously setup social media accounts with names like “URLdefamer,” just to rub it in.
There’s clearly no way that hyperlinks can be considered defamatory. Every reasonable person familiar with the Internet must think so, and its strange the Supreme Court even had to spend its time ruling on the matter. By the way, if you want to share this article with your friends, you can use this link: http://bit.ly/brianjacksonisahorsethief.