Crookes v. Newton: where is the Line Drawn Between Hyperlinks and Libel?
As a Canadian student at Cornell, I try to keep up-to-date with the news from home. Considering we are learning about the structure of the Internet in Networks, I was particularly interested to read about the October 19 Canadian Supreme Court decision of Crookes v. Newton, in which it was unanimously ruled that “posting online links to a website containing libelous material is not libel in itself.”
The case involves Jon Newton of Vancouver, British Columbia, who owns the file sharing and freedom of speech news website P2Pnet.net. In 2006, Newton published an essay ironically entitled “Free Speech in Canada” about a dispute involving a local Vancouver businessman, Wayne Crookes, who sued a former associate for publishing articles online that Crookes found harmful. Newton’s piece contained allegedly defamatory hyperlinks about Crookes, but Newton neither reproduced any of the material under question on his own website nor made any comments about it. Nevertheless, when Newton refused to remove the hyperlinks after Crookes demanded that he take them down, Crookes sued Newton as well.
Crookes’ lawyers argued that there was no difference between publishing contentious statements on a site itself and publishing hyperlinks to the sites where the statements were written. His attorneys dismissed the generally accepted notion (that was discussed in this class) that hyperlinks are akin to footnotes, in which the footnotes do not serve as a publishing means themselves but instead point to the published content. Instead, Crookes’ lawyers argued: “The creation of a hyperlink actually embeds the referred to material in the primary article…The utilization of a hyperlink, if it is analogous at all to the footnote in written material or a card index in a library, would be analogous only if the material accessed by the hyperlink were stapled to the written material or card index.”
The Supreme Court of Canada dismissed Crookes’ argument and his conception of a hyperlink. The Court maintained that “Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content…Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker.” This framework of “presenting content from the hyperlinked material in a way that actually repeats the defamatory content” accounts for a link that contains text supporting or containing the contentious content as well as an intentional act to make the information readily available.
The Supreme Court of Canada’s definition of a hyperlink is in keeping with the notion of hypertext explored in this class: hypertext makes reference to content’s existence, but is not considered to be publication of that content itself. We learned that hypertext is what makes the Web a “web:” it serves as the edges between nodes, or webpages, allowing the Internet to become a directed graph and forming the structure of the Internet as an information network. Through the use of hypertext, “logical relationships within the text that are traditionally implicit become first-class objects, foregrounded by the use of explicit links;” the “traditional linear structure of text” is replaced with a “network structure” (378).
It was explained in this class – as well as in the justification of the ruling – that citation networks are “an earlier form of information network:” “when the author or authors of a scholarly work wish to credit the source of an idea they are invoking, they include a citation to the earlier paper that provides the source of this idea” (378, 380). While we discussed some of the differences between citations and the Web, notably how citations are governed much more strongly by an underlying “arrow of time,” I feel that there are other differences between the two means that are relevant to this and to future court decisions regarding hyperlinks (380). In academia, there are standards and styles, such as the MLA and Chicago styles, to which academics must conform. There are strict rules denoting what kind of content can appear in a citation and in what order, such as the author, title, and year of publication of a work. Yet, unlike in academic citations, no such regulation exists regarding the text of hyperlinks on the Internet. While the World Wide Web Consortium certainly has standards for the proper syntax of anchor tags in HTML, there exist no standards as to what the text between the opening and closing of the anchor tags can contain. Now, with the Supreme Court of Canada’s recent ruling, the hyperlink “Read the sordid truth about him here” would be considered libelous since it falls under the framework of “presenting content from the hyperlinked material in a way that actually repeats the defamatory content.” If the content of hyperlinks had to conform to a stricter set of rules, similar to MLA and Chicago style citations in academia, could the cases like this be avoided altogether?
The Supreme Court of Canada’s ruling satisfied those advocating freedom of expression on the Internet. As part of the ruling, it maintained:
“The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. 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. “
I am in accordance with the Supreme Court of Canada’s ruling: if hypertext, serving as edges, were to be subject to “the traditional publication rule,” authors would be less inclined to use hyperlinks for fear of liability, making the webpage nodes less connected, detrimentally affecting the structure of the Internet. I am happy that the Court has ruled in Newton’s favor and that it understands the “link” between free speech and the Internet.
Sources:
http://scc.lexum.org/en/2011/2011scc47/2011scc47.html
http://www.ctv.ca/CTVNews/Canada/20111019/scc-defamation-web-link-111019/
http://www.bbc.co.uk/news/world-us-canada-15374238