I was moved by a case called Crookes v Newton which I only discovered a couple of months ago. In fact argument is being heard in the case right now. Everyone who is a blogger, website operator or is in any way, shape or form interested in free speech on the internet should be following this case, as it has extremely important implications for free speech on the internet.
I have posted about it here and here. Though not someone inclined to put myself ‘out there’, I felt moved enough to put my embarrassment aside and do a couple of YouTube videos on the case found on the pacelegal channel.
The decision of a British Columbia Court of Appeal, released on September 15 2009 reported earlier, discussed the potential liability of a website operator for libel for posting hyperlinks to articles containing allegedly defamatory material.
The Plaintiff had already sued a number of people and organisations who he alleged had published content which was defamatory of him.
The Defendant, Mr Jon Newton, the operator of a free speech h website called p2pnet decided to write an article on ‘Free Speech in Canada’. Within Mr Newton’s article there were two hyperlinks which appeared linking to the allegedly defamatory content.
All these hyperlinks did was to enable readers to access external websites which contained the allegedly defamatory content if they wished to do so. None of the allegedly defamatory content was re-published by the defendant owner of p2pnet, it wasn’t excerpted, nor was it summarised within the article.
It is what your or I might do if writing an essay and wanted our readers to have access to the reference material used within our essays.
The Plaintiff discovered that the Defendant had written an article on ‘Free Speech in Canada’ which contained hyperlinks to the material he was offended by, and requested he remove the hyperlinks via his Lawyer.
The defendant, Mr Newton failed to respond to this request, as hyperlinks are …well…just hyperlinks! They are used everyday by people on the web and they are the means by which the web functions. The Defendant had no control over the websites which contained the defamatory material, so couldn’t do anything about this material which lay at the heart of the Defendants’ real concerns.
Upon refusing to remove the hyperlinks, the plaintiff added the defendant to what was already a long list of people who he had felt had besmirched his reputation. At first instance, the Court dismissed his case.
The plaintiff, who had demonstrated a lot of persistence, didn’t feel that the Judge’s decision was satisfactory and decided to appeal to the British Columbia Court of Appeal (BCCC), arguing that the hyperlinks should be considered a publication by the defendant website operator of p2pnet Mr Newton.
There was no question in the Court’s decision that a hyperlink doesn’t constitute a publication. However the Court seemed to be divided in their opinion as to whether the facts surrounding the generation of the hyperlink in this particular case could create what they referred to as “an inference of publication”.
The result was once again, a ‘victory’ for the Defendant Newton, who had gone through the ordeal of not one by two trials, this time before an Appeals Court. The Court held that the hyperlink postings could not be construed as a publication by the defendant and therefore no liability could be attached to him.
During the course of the case the Defendant raised what is a logical and compelling argument which found favour with the Court to the effect that hyperlinks were very much like footnotes, references or bibliographies which in turn providing references to other sources. As the author of a book, essay or dissertation wouldn’t be held liable for defamatory statements which could be ferreted out of footnotes they referenced, a website operator creating hyperlinks to external material shouldn’t be culpable.
However the Court stated clearly that the ‘footnote analogy’ was no guarantee to any website owner or blogger of escaping liability for posting hyperlinks. Their reasoning was that authors use footnotes and references in an expansive manner.
The Court proceeded to set out a list of factors which are not conclusive in assessing, in any given situation, whether liability could be applied to defendants such as Newton:
a) how prominently a hyperlink is displayed
b) the presence of any words of invitation or recommendation to the reader encouraging them to click on the hyperlink
c) the nature of materials which the creator of the hyperlink suggests may be located at the hyperlink, for instance whether it is suggested material is salacious or obscene and;
d) a range of other factors.
This leaves the situation dangerously open-ended for any publisher on the internet who could find themselves in the very situation that Mr Newton found himself in.
Mr Crookes, who has proved rather persistent in his pursuit of persons who have written about him or even written articles about free speech as did Mr Newton containing footnotes to allegedly defamatory content, has applied for and received approval to appeal to the Supreme Court regarding the BCCA’s judgement.
That appeal is due to be heard.
It has implications for all publishers not just those accused directly of posting libellous material. These are the types of libel cases which have been the primary focus of discussion on libel and the need for libel reform on the internet. The reform of libel laws is indeed a matter of great public interest and will continue to do so.
However let us not forget that in this case, Mr Crookes is not pursuing the person who posted the allegedly defamatory material, rather a person who wrote an article on free speech and created a hyperlink without anything more!!
This issue of defamation by hyperlink was foreshadowed years ago in the writings of academics such as media law expert Professor David Lindsay.
The Canadian case Crookes v Newton is the first case which has examined the situation where a person who has posted a hyperlink on the internet has been pursued for libel.
It has far reaching implications. Given the inherent nature of the way in which the internet operates it is likely that his issue will arise more frequently.
The threat that this case poses cannot be underestimated and will shape the future law in this area and perhaps cause reticence amongst internet publishers to use the very tools that make the internet the vibrant marketplace of ideas that it is.