If a person can be found to have defamed another just by including a hyperlink to a defamatory website, freedom of expression is at risk, Canada's top court heard Tuesday.
"Hyperlinks are vital to the expression and use of the internet," said Harvey Delaney, one of two lawyers representing the respondent in the case, B.C. resident Jon Newton.
Delaney said the "cost to expression would be too great" if internet users were held responsible for all material they simply linked to.
The Supreme Court of Canada has reserved its judgment on the case, which was brought forward by Wayne Crookes, a former Green Party campaign manager, and his company, Appellant West Coast Title Search Ltd.
Crookes is seeking damages from Newton for defamation over links that appeared in an article titled "Free Speech in Canada" posted on Newton's website, www.p2pnet.net, on July 18, 2006.
Crookes alleges the hyperlinked aritcles were defamatory. Crookes further claims that by hyperlinking to them and refusing to remove the links when advised they were defamatory, Newton was himself a publisher of the defamatory articles.Crookes was granted leave by the nation's top court in April to appeal a British Columbia ruling that went against him in 2008.
'We're sentencing the hyperlink to death, it seems to me.' — Justice Louise Charron
"When you put a hyperlink in the text, it's part of the text," Crookes's lawyer, Donald Jordan, told the Supreme Court Tuesday.
He said that by linking to a website, you not only invite but encourage readers to visit the site.
Jordan's arguments raised concerns from Supreme Court Justice Louise Charron.
"It seems to me that if we accept the position you're putting forth, then no one should ever hyperlink," Charron said. "Maybe I'm a chicken, but I would not dare create a hyperlink because there might be some defamatory material, and I'll be stuck defending myself in court, and I cannot afford it … We're sentencing the hyperlink to death, it seems to me."
But Jordan countered that internet users should be responsible enough to review material and make a judgement before linking to it.
Daniel Burnett, who was representing Newton along with Delaney, said that Charron's concerns describe a "real fear or chill" that would be upon both ordinary citizens like Newton and the media business.
Economic risk to media
Robert Anderson, a lawyer representing print, broadcast and publishing industry groups acting as intervenors in the case, said hyperlinking is used by the media to both bring content to readers and to maintain their ranking in search engines. Half the traffic to newspaper and other media sites comes to the sites via Google.
"If hyperlinking is publication, it will have a serious impact on the ability of those industries to bring content to its readership and to maintain its economic survival," Anderson said.
Canadian media sites will no longer be able to compete, especially against American sites, he added, as hyperlinking is not considered publication in the U.S.
In Canada, links have not yet explicitly been categorized — either as publication or not publication. Doing so would require an act of Parliament, Jordan said.
In the meantime, he said, the media on the internet should behave as responsibly as they do when disseminating information in print and on the air.
Liability with explicit endorsement
Newton's lawyers acknowledged that there might be some circumstances when an internet author might explicitly endorse an article they link to and might therefore be liable. However, they said, the case before the Supreme Court does not fall into that category.
Civil liberties groups taking part as intervenors urged the Supreme Court to set out clear guidelines on when an internet user might be found to be a "publisher."
Wendy Matheson, a lawyer representing the Canadian Civil Liberties Association, argued that the only such circumstance should be when a person has actually produced the words himself and therefore meets the current definition of a publisher.
"Anything else will substantially impair the freedom of expression of ordinary people," she said, arguing that rules relating to context are too difficult for people to interpret.
Roy Millen, a lawyer for the B.C. Civil Liberties Association, said website creators should only be liable for hyperlinks if they knowingly and explicitly endorse the libelous statements on the hyperlinked site, and then only if it was proven that the statements were read as a result of the hyperlink.
A number of other lawyers in the case agreed that the latter proof of harm is important, and Netwon's lawyers argued that no such link had been made in Newton's case.
Supreme Court decisions are typically released six to eight months after a hearing.