The veritable "penny in the poop"--a genuine contribution to political discourse from Free Dominion. Because Rob Nicholson will tell the wing-nuts there what he won't tell us normal folk. Not that what's he saying is crazy in this case, its just the first official explication of Clause 5 of Bill 51 that I've seen. That's the gov's update to Canadian hate-speech laws that talks about how they apply to the Internet, in particular addressing the question: can linking to defamation be defamation?
I would like to take this opportunity to address a few of your concerns. This former clause proposed amending section 319 of the Criminal Code, which creates two offences under the heading of hate propaganda that involve the act of communicating. Specifically, subsection 319(1) makes it an offence to communicate statements that incite hatred against any identifiable group in any public place, where such incitement is likely to lead to a breach of the peace. Subsection 319(2) makes it an offence to communicate statements, other than in a private conversation, which wilfully promote hatred against any identifiable group. Identifiable group is defined by subsection 318(4) to mean any section of the public distinguishable by colour, race, religion, ethnic origin, or sexual orientation. Subsection 319(7) currently defines communicating for the purposes of these sections as communicating by telephone, broadcasting, or other audible or visible means.
Clause 5 proposed to update this definition to state that communicating means communicating by any means and includes making available. While it is true that providing a hyperlink would fall under this definition in certain circumstances—as it would under the current definition of communicating in subsection 319(7)—providing a hyperlink alone is not enough to commit either of these two hate propaganda offences. As the previous paragraph shows, many other elements must be proven before a person can be found guilty. The amendment merely described the manner in which a prohibited statement could have been made. It would not have determined whether a statement was of a prohibited nature, or whether a communicator had the necessary guilty mind to commit the offence. The necessity to prove beyond a reasonable doubt the existence of a guilty mind for these crimes is an important safeguard that protects freedom of expression. For example, in the case of R. v. Keegstra, the Supreme Court of Canada held that the crime of “wilfully” promoting hatred against an identifiable group means “intentionally” promoting hatred. This excludes the reckless or negligent promotion of hatred from the scope of this crime. These stringent requirements already exist in the Criminal Code and would not have been changed by the amendments proposed in former Bill C-51.
Short answer to the question posed above. Sometimes linking to defamation can be defamation, but sometimes not, depending on a whole lotta other shit. IMHO, its all just the Crookes case generalized from defamation to hate speech, but IANAL. Also interesting to note that Nicholson thinks all of this is already derivable from the legislation pre clause 5.