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.

Someone's Gonna Get Sued!

But not me! I'm just pointing to it, not describing it.  Thus, according to the Supreme Court Of Canada, I'm right as rain, no matter how noxious my intentions might be.  Though I assure you all they are pure as gold.

I'm also just pointing to, but not describing, this, by the way.  

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?