Free Speech Online Buoyed, but Concerns Remain

Last Monday, the British Columbia Supreme Court released an important decision regarding online defamation in Crookes v. Wikimedia Foundation Inc., 2008 BCSC 1424.  In the decision, Justice Kelleher addressed two issues: (1) whether proving ‘publication’ requires evidence of individuals following hyperlinks, and (2) whether creating a hyperlink to defamatory material constitutes ‘republication’ of that material. 

Concerning the second point, the court compared a hyperlink to a footnote that leaves the reader with the choice to follow the link.  Since the reader would have no actual knowledge of the defamatory material, the court concluded that merely hyperlinking without reproduction and without further comment does not constitute ‘republication’.  In light of the lack of endorsement of the materials in the facts of the case, this seems like a reasonable conclusion that appropriately safeguards freedom of expression interests in online activities.  Indeed, this view has been expressed elsewhere (see e.g., here, and p2pnet’s response here). 

Nevertheless, the speed, reach, and immediacy of Internet communications leaves lingering doubts about how to safeguard reputations in the online world.  That is, because information on the Internet can spread so quickly through links, the severity of damage caused by defamatory material online is potentially much greater than that caused by a footnote.

A recent example of this is how on Oct. 3, erroneous information about the death and sickness of Apple Inc. CEO Steve Jobs spread quickly through the internet and caused a plunge in Apple’s share price.  While the situation was quickly rectified when Apple repudiated the claim, the wide spread of false information was aided by many people posting links to originating sources.  Undoubtedly, an Apple shareholder who had to sell shares that morning would have suffered a dramatic loss.  Although the SEC has started an investigation into who started the rumor, it remains that the damage suffered by said shareholder stemmed in part from the innocent posting of links.

Interestingly, Justice Kelleher did not consider the immediacy of access to the information with too much weight.  At para. 30, he writes,

Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided.

By placing the emphasis on whether the reader has a choice to follow the link, and dismissing the impact of the immediacy of access, the decision leaves no recourse for parties who are injured because of the very fact that information spread so quickly.  With the outcome in this case, this is seemingly a reality that we will have to accept – a price paid for maintaining free speech online.

One Comment
  1. I think the decision may still leave some room for recourse in a situation analogous to the Steve Jobs scenario you gave. Justice Kelleher was careful to note:

    “[34] I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written “the truth about Wayne Crookes is found here” and “here” is hyperlinked to the specific defamatory words, this might lead to a different conclusion.”

    It was quite significant that the posting on p2pnet was a commentary “on the implications of defamation actions for those who operate internet forums” and not a post on the substance of the alleged defaming material. Whereas, to stick with the analogy, a report stating Steve Jobs had a heart attack with a link to a source may not be protected under this decision, leaving a defendant to rely on defences of fair comment and qualified privilege.

    There’s a big grey area between the facts of this case and the facts in Justice Kelleher’s hypothetical quoted above which may still allow someone who is defamed to go after those who spread the information around. Especially if significant actual evidence of traffic coming from the link to the source is adduced (a statistic typically recorded in server logs).

    However your point is still valid, especially when you add the ever lasting memory of the Internet to the immediacy of access issue. Which I think also raises the question, even if a page is found to be defaming, are remedies sufficient when the spread of any retraction or correction of the information is beyond the defamer’s control and where the defaming material will likely always remain accessible one way or another through caches etc?

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