Wednesday, December 8, 2010

Can hyperlinking be defamatory?

A case before the Supreme Court of Canada depends on this question:

Canada would be offside with other English-speaking countries if legal restrictions were imposed on the exploding practice of linking to online postings, the Supreme Court of Canada was told Tuesday.

The court reserved judgment after a three-hour hearing in the case of Lake Cowichan writer Jon Newton. Several lawyers representing a variety of interests argued that exposing writers like Newton to lawsuits if they link to a defamatory posting would cast a wide chill.

Several judges seemed receptive to the argument, including Justice Louise Charron, who speculated that Internet users would be afraid to link to other material if the court made them legally responsible for their actions.

The appeal was brought to the Supreme Court by Vancouver businessman Wayne Crookes, who alleges that Newton, who runs the website, defamed him by linking to a reputation-smearing article in a 2006 post about free speech.

From the Vancouver Sun. I'm pretty confident that the Supreme Court will uphold the lower court's decision, which ruled that hyperlinks are analogous to footnotes and are not publications themselves, but we'll have to see how it goes. Any other ruling, however, would be a travesty. For one thing, I'd have to think twice about continuing this blog; what if someone decides that something I've linked to is defamatory? Or what if you link to something that links to something else that's defamatory? If Crookes gets his way, you wouldn't want to risk linking to anything. And of course, without links a blog -- and indeed, the entire Web -- is almost worthless.

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