Stuart Freen is a JD candidate at Osgoode Hall Law School
Can a blogger posting links on a website be held liable for the contents of those linked sites? This is the question that was posed to the Supreme Court of Canada last week when it heard Crookes v. Newton, the latest case to tackle defamation and publication on the internet. The plaintiff Wayne Crookes argues that websites should be held liable when they refuse to remove external hyperlinks to defamatory articles. If answered in the affirmative, the decision could have a major impact on Canadian web publishing by forcing websites to be much more cautious on who they link to.
The case stems from a series of allegedly defamatory articles posted on openpolitics.ca and usgovernetics.com that were critical of the role Crookes, a Vancouver businessman and former Green Party campaign manager, played within the Green Party of Canada. The defendant reposted hyperlinks to the articles on his own website p2pnet.net, prompting Crookes to request that the links be taken down. When Newton refused, Crookes sued for libel.
The central question at each level of this case has been whether the act of posting of a hyperlink can in and of itself be a “publication” in the context of the B.C. Libel and Slander Act. In other words: can it be libellous to merely point visitors to an offending article? The B.C. Court of Appeal unanimously held that posting links does not automatically constitute publication, but split on whether Newton had gone too far and essentially endorsed the views of the linked articles. The dissenting judge would have held that Newton was liable for at least one of the articles he linked due to the presence of language that encouraged visitors to follow the hyperlink.
The case has been closely watched by free speech advocates and online publishers and writers. If Crookes is successful at the Supreme Court it will force Canadian web publishers to seriously reassess their own linking practices. CIPPIC Director David Fewer suggested to the CBC that such a ruling would have a massive chilling effect on internet participation.