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?

FreeD Proves Useful: New Hate Speech Provisions Clarified

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.

Crookes Loses: Linking To Defamatory Material Not Necessarily Defamatory

The decision is here. For anyone that doesn't know, Green Party activist Wayne Crookes sued a number of people, including Michael Geist for linking to material he considered defamatory. It was not too far from the truth to say he was trying to "sue the entire internet". Luckily, at least one of the judges in one of the cases decided that this would not stand.

I haven't read the whole decision, but from this:

[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.

...suggests that if you say something in support of the defamatory material at the other end of the link then you could be in trouble, but merely linking to, and perhaps even describing the content on, a page carrying defamatory material, is not enough.

Hopefully this has positive implication for the case against Mark of Section 15.

PS. There is very little here that is pertinant to the Warman defamation suits.

h/t.

On Really Fighting For Free Speech

Mark has a pay-pal button and an address up at Section 15 if anyone wants to help out with his case against Wayne Crookes. The details are here or, from a slightly different perspective, here, but the notion that Crookes has "put the whole Internet on trial" is not too far wrong.

I'll be mailing a cheque myself today, and if I can dig some Canadian Tire money out of my car's glove-box, a 2nd donation will follow. I would ask that Mark et al not reveal the exact amount of my donation when it arrives, as intimations of great wealth (an estate in both town and country, etc.) are a part of the BCL mystique and I don't want to blow the game.

You Want To Help A Canadian Blogger Fighting For Free Speech?

Send your pennies to this guy.

A couple of years ago Mark got caught up in the Wayne Crookes "Libelpalooza" and, although the case died in a B.C. courtroom, Crookes has appealed and there are many bills still to pay. You can get the more details on Mark's particular situation re his blog, but one of the worrying things about Crookes' efforts is that he has sued people (Michael Geist, specifically) for linking to a site that linked to another site that contained allegedly defamatory material.

Now that's scary.

Former Green Party Campaign Manager Adds Michael Geist To The List, Is Now Suing Entire Internet

Wayne Crookes is a former organizer for the Green Party of Canada, and so litigious he makes Warren Kinsella look unflappable. Michael Geist is one of Canada's foremost experts on all things Internet (and an excellent speaker). Crookes suit against Geist, according to the latter, concerns:

...an allegedly defamatory third party comment on my site that I took down and for writing about, and linking to, P2PNet.net, which in turn linked to another site that allegedly contained a defamatory posting. In other words, I'm reportedly being sued for maintaining a blogroll that links to a site that links to a site that contains some allegedly defamatory third party comments.

I am frankly at a loss for words. Some things are so stupid as to be beyond even my ability to ridicule them