Hyperlinking is fundamental to how information spreads on the web — it’s the reason why traffic spikes on some sites and also explains why false information can funnel outward so quickly. One question that publishers and lawyers have long wrestled with is whether sites are legally liable for the accuracy of material they link out to. In a major ruling today, a court offered an answer to that.
Authors should not be held liable for providing links to websites that contain defamatory material, according to the Supreme Court of Canada. The decision is a big win for online publishers. It also marks a shift in how the law weighs competing concerns about reputations and free speech.
The case began three years ago when a politician sued a blogger named Jon Newton for linking to an anonymous, allegedly defamatory article. This morning, the court found that linking is not the same as publishing, and it equated links to paths or “footnotes” that help people navigate the internet.
The decision is significant because of ongoing uncertainty in many countries about how defamation laws apply to the internet. In the print world, a publication is liable if its reprints an article that harms someone’s reputation. The principle can extend to other forms of communications. Indeed, one famous case, cited in today’s decision, found that a man who sat by a road pointing to a sign was liable for defamation.
The case of hyperlinks is a challenge for courts because they can be considered as a form or republishing on one hand, or simply as a direction arrow on the other. The court today took the latter view, saying, “Hyperlinks are, in essence, references, which are fundamentally different from other acts of ‘publication’” and that the opposite conclusion “would seriously restrict the flow of information on the internet and, as a result, freedom of expression.” The court added that authors should not be liable for linking since they have no control over the material to which they link.
A minority of the judges thought the new principle went too far. One of these judges, noting that a link can result in a huge spike in the number of people viewing an article, said that links should be considered in the context of how they are presented.
The case is likely to have ripple effects in other common law countries that are struggling with about how to define online defamation. A court in the United Kingdom, whose notoriously strict defamation laws have given rise to “libel tourism,” last year ruled that links should be considered in deciding whether a Spectator article about an Islamic group was defamatory.
In the United States, the defendant in the Canadian case would likely have been protected by the same law that protects Internet service Providers and web hosts from liability, according to Robert Balin and Jim Rosenfeld, media law experts at Davis Wright Tremaine. “Merely hyperlinking in and of itself would fall within Section 230 immunity,” said Balin.