Wednesday, October 19, 2011

Crookes Case...Gone Badly Wrong?

First thing, the entire decision is here.  It isn't too long nor hard to follow.

Second thing,  its pretty clear that Crookes v. Newton deserved to fail.

Third thing, this bit of reasoning for the majority position strikes me as rather badly done, and extremely ominous:

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. 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.

I'm afraid this sounds like a blanket exemption for linking to defamatory material.  So, imagine the following.

I publish a post which says:

John Doe is a murderer.

I am soon approached by Mr. Doe's lawyers.  But then Bob writes a post which says

BCL finally tells the truth about John Doe.

Not having repeated any of the defamatory content, the SCC ruling lets Bob off Scot free.  Now, you might argue that's fine.  Bob doesn't control what's at the other end of the link.  Maybe it's been changed in the meantime.  Why should he be responsible? And etc.

Okay, but lets assume that Bob knows exactly at the other end of the link and is in clearly endorsing the defamatory content. And lets assume that in context it is absolutely clear that Bob's intent is to ruin the reputation  of John Doe, as much as mine was.

The defamatory content was not repeated in his post, so he suffers no consequence.  Period.  End of story.  Several justices dissented on this point, suggesting that context should be taken into consideration, and endorsing defamation should be considered defamation.  The majority seems to have said NO.

The downside to this ought to be obvious.  As Dan Grice notes in the comments over at Geist's place:

This ruling opens the door for abuse by publishers, and those with popular sites to readily direct readers to defamation and ruin reputations with no recourse to the person whose reputation is ruined. The person writing to exact words could be judgement proof, out of jurisdiction or sufficiently hidden. (I could write a defamatory article using a proxy site to ensure I would never be found, link to it myself, and be practically untouchable).

Exactly right. To give another example, a well known journalist links to a nobody blogger who is literally not worth suing.  A reputation gets damaged, and the perps get away clear.

 So what should have been a slam dunk for the SCC--just follow the reasoning of the B.C. judge--appears to have gone a bit sideways.

PS. The decision might also allow you to link to sites hosting copyright infringing music and movies.  Hmm.  Glass half-full?


Jerome Bastien said...

Actually, from my reading of (only parts of) the decision, I think if you link to the defamatory material approvingly, as in your example, you can still be liable.

But if your link is simply like this:

This is BCL's opinion of John Doe

the linker is not liable.

This lawyer seems to agree with my take (im pretty sure there is no defamatory material there, but regardless: the above link should not be construed as an endorsement of the views expressed at that site)

I wonder though, if we forget about the internet for a second, if I publish on dead trees and write "This book by so-and-so is highly recommended", and the book is defamatory, would that be considered defamation? I suppose this is a settled point of law, I just dont know which way it's settled.

bigcitylib said...

Jerome, i've read that one too, and linked to it.

The very weird thing about this is, if you read his whole post, the ruling could make it much harder to convict someone for violating copyright by using P2P software and linking to illegal copies of music and movies.

But my real problem with his interpretation is it seems to me the minority opinions are not elaborations of, but dissents from, the majority position. The MSM stories seem to be split on this issue. I mean, Knopf is a lawyer and I'm not, but still I remain confused.

Jerome Bastien said...

BCL: I hadnt caught that link to excesscopyright. Full disclosure, Knopf works at the same law firm as I do. He's a brilliant guy, and he thinks Im a rightwing nut (I just dont want any of the stuff I say here to be associated with him in anyway, it's not, he vehemently disagrees with me on most things).

On this though, I dont disagree with him. Dissenting opinions can be used to clarify points of law where the majority was not clear. This might be one of those cases. They are not binding on lower courts, but they can be cited nonetheless, with varying degrees of success.

I'll try to pick his brain on this a bit.

As for the copyright stuff, I think that will be sorted out with the upcoming copyright bill.

Dr.Dawg said...

Not sure you're correct on this one.

The majority judgement at para. 48 runs:

"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."

That seems to nullify your example.

bigcitylib said...

Dawg, that's the Fish/Chief Justice gloss of the Abella majority decision, not actually a part of the majority decision. So, when the law is applied, is it Abella or Abella plus gloss?

bigcitylib said...

Jerome,Grice gives something of an answer to that at Geist's site:

Big City Lib, if you read the decision, Deschamps goes into the current law of defamation the strongest. For instance, at one point a library offering a book which contain defamation could be held liable as there was a broad definition of publishing. A golf club in which someone else posted a defamatory note, was liable once they read it and failed to remove it. On the flip side, the defence of innocent decimation protected most people from any sort of liability for others defamation that they had a role in.

Terrence said...

"So, when the law is applied, is it Abella or Abella plus gloss?"

Some legal philosophers would say the answer to this question is actually indeterminate until some other court actually applies the ruling. It's in the application that the rule contained vaguely suggested in the ruling gets most of its content.

In short, if other courts accept the gloss, then it is the gloss that controls. But I'm a philosopher not a lawyer.

I've often though that Dickson's gloss on Lord Sankey's opinion for the JCPC in the the Edwards case is used more often than Sankey's actual opinion (which only tenuously licenses some of what the SCC has said and done when interpreting the Charter.)

I'd love further thoughts on that from actual lawyers.