On Linking To Hate Speech

This story, about the draconian effects of Investigative Powers for the 21^st Century Act, begin in the frenzied depths of the mind of Free Dominion's Mark Fournier,  and has spreadfrom their  to more reputable quarters.  The specific claim is that the act, which reads in part

Clause 5 of the bill provides that the offences of public incitement of hatred and wilful promotion of hatred may be committed… by creating a hyperlink that directs web surfers to a website where hate material is posted.

...will making hyper-linking an activity fraught with peril, and might in the end "make the Internet itself illegal".  The problem is that, by analogous arguments, you could argue that current Canadian law already makes the "Internet illegal".  That is, Canadian defamation law has already spoken: linking to defamatory may be (not is, necessarily) defamatory.  For example, the judge in the Crookes case--in which green party activist Wayne Crookes attempted to, as the story goes, "sue the Internet"-- laid down several clarifying markers:

[84] I agree, as well, that the circumstances of a case may add more so as to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents. For example, in Hird v. Wood (1894), 38 S.J. 234 (C.A.), referred to in Carter, evidence of the defendant pointing to a placard with content was held to be sufficient evidence of publication to go to a jury. So a statement to the effect “N is described at [hyper link]” may itself incorporate a libel so as to be defamatory.


Now, I am not a lawyer, but I know a few, and what this passage implies is that if you write something in support of the defamatory material at the other end of the link then you can get in trouble, but merely linking to, and perhaps even describing the content on a page carrying defamatory material, is not necessarily enough to be defamatory.

In any case, merely linking to defamatory material under Canuck law can be libel.  That's already settled.  Bill C-51 merely extends this to the matter of hate-speech.  So it doesn't strike me as a particularly big deal if you aren't already a hard-core Speechy (free speech absolutist).  The Internet is no more or less safe for linking than it was.

Don't get me wrong:  C-51 is bad law. At its core it seems to demand that Canadian ISPs beef up and redesign their networks in order to spy on their customers when the police or government demand it, and demands that they do this without financial assistance from the government.  I just don't clause 5 is where the really awful parts of the law are set out.