Crookes v. Newton - Hyperlinking is Not Publication - Implications for Access Copyright's Proposed Post-Secondary Tariff

Today’s Supreme Court of Canada ruling in Crookes v. Newton is a well deserved victory not only for Jon Newton and his very capable counsel, Dan Burnett and Harvey Delaney, but for the internet itself. The Court was fully aware of what was at stake.

Here are some excerpts from the majority opinion written by Abella, J.:

...I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers. (para. 14)

Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers. (para. 30)

The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged” (SOCAN, at para. 40, per Binnie J.). Hyperlinks, in particular, are an indispensable part of its operation. As Matthew Collins explains, at para. 5.42:

Hyperlinks are the synapses connecting different parts of the world wide web. Without hyperlinks, the web would be like a library without a  catalogue: full of information, but with no sure means of finding it.

(para. 34)

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. (para. 36)

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. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation. While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future. (para. 42)

The Chief Justice and Justice Fish, in a brief concurrence, add the qualification that:

In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent web site that later becomes defamatory would not be liable. (Para. 48)

Justice Deschamps also provides a lengthy concurring opinion which I have not yet had time to analyze. 

Comment: 

Justice Abella’s resounding defence of the internet and the essential role of linking will be widely read and much quoted. It is not a free pass for defamation online.  While a link “by itself” will not be viewed as publication in a defamation action, the addition of commentary approving or adopting the content of site to which the link points could give rise to liability. The Chief Justice and Justice Fish confirm this point. They also add that an approving reference to a site that later becomes defamatory will not give rise to liability.

This decision bodes well for the objectors to Access Copyright’s proposed post-secondary tariff that seeks a 1,300% increase over the current basic license fee. The proposed tariff defines a “copy” as including a digital copy “made by or as a consequence” of “posting a link or hyperlink to a Digital Copy”. It also goes on to include a demand for payment for any required or recommended readings that are “(i) emailed, linked or hyperlinked to, or  (ii) posted, uploaded to, or stored, on a Secure Network.”

Access Copyright also wants the right to audit the secure networks inside universities, including professors’ emails, to monitor such links and hyperlinks.

Today’s decision may warrant an early attempt to dispose of this controversial element of the proposed Access Copyright tariff. If a link or hyperlink by itself does not constitute “publication” for defamation purposes, it is difficult to see how it could, by itself, constitute publication or reproduction or any other activity covered by the Copyright Act.

The removal of this aspect of the proposed tariff would greatly simplify the case now proceeding at the Copyright Board. Perhaps one or more of the objectors will ask the Copyright Board for a preliminary ruling to this effect. If the Board declines to so rule, consideration might be given to judicial review.


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