Wednesday, February 11, 2015

Andrew Weaver Vs. The National Post: Linking To Defamation In Canada

A number of stories have already appeared re the successful lawsuit launched by climate scientist (and now Green Party MLA) Andrew Weaver against writers at The National Post.  Here's a pretty good one, and the decision in its entirety can be found here.  I can't add much to what has already been said, but the case has a couple of interesting facets beyond what people have generally noted.

One is how this case elaborates on the SCC decision in Crookes v. Newton.  Back then I wrote that the Supreme Court seemed to be providing a blanket exemption for linking to defamatory material. That is, if you simply linked to the offending material without describing it, independent of the context around your link, you were in the clear.  I argued:

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.

If you read the original, there is some back and forth on this in the comments.  After all, several judges in concurring opinions invoked the notion of "context".  But these nuances didn't make the majority decision, and isn't that what the law becomes?

So, Crookes v. Newton is mentioned about a dozen times in the Weaver decision.  In particular, the NP lawyers argue that "...republication cannot be a mere hyperlink as stated in Crookes. Thus, the “story tools” on the National Post website do not qualify as authorization. The evidence established these are merely permitted hyperlinks back to the original article."  And while noting that there is room for "nuance" in deciding whether someone can be liable for hyperlinking Judge Burke seems to accept this reasoning.  Or at least accepts that this is what the SCC decided:

[270]     In Crookes at para. 20, the Supreme Court of Canada acknowledged the defence of innocent dissemination, which developed in an earlier era for secondary distributors such as booksellers, will likely come into play with secondary Internet publications. The Court recognized however that, on the Internet, courts must be careful to develop the law in a way that does not unduly stifle the free exchange of ideas. As such, in Crookes, the Court held hyperlinks are not publications.

[271]     The Supreme Court of Canada in Crookes concluded while the legislator has created a specific presumption a publication in respect of broadcast, it has not done so in respect hyperlinks and therefore the court should refrain from creating a new one: at para. 108.

So there you have it.  For reasons given above, I think the SCC made a bad call in Crookes v. Newton.  But under current Canadian law, you can link to defamatory material even where circumstances indicate that you are doing so out of evil intent.


Lars said...

The Weaver verdict is very satisfying.

themusicgod1 said...

The SCC made the right call on the Crookes case. The only way for Google, and other search engines not to link to material in an infringing way would have been to blacklist canada. We are better off with a search engine like google than without.