Monday, October 24, 2011

Cannot defame with a hyperlink - Canadian Supreme Court ruling

In the spirit of actually being in Canada, I learnt last Thursday that in a groundbreaking case the Canadian Supreme Court has supported two lower courts in ruling unanimously that hyperlinking to defamatory information is not the same as defaming someone, unless the information is replicated in the link or on the hyperlinker's site or page.

Learn more about the ruling (in a case originally brought in a British Columbia court by a Vancouver business person and political volunteer against a local website) in this BBC article, Canada Supreme Court: hyperlinks cannot libel. Yes there is a certain irony about reporting in Vancouver on a Vancouver case by referring to a British website - however I read the original story in a local (paper) newspaper.

This ruling may have flow-on influence to Australian courts, who do take some note of rulings in other Westminster jurisdictions, particularly in Common Law areas where precedents are important in clarifying grey areas in law.

The Canadian ruling, where the Court considered hyperlinks as "content neutral" (as hyperlinkers have no control over the content they link to), may even extend further to cases where links point to prohibited, but not necessarily illegal content, such as some Refused Classification (RC) content under Australia's classification for content deemed offensive but not necessarily illegal under Australian law.

Currently it is an offense to link to RC-rated content, or even to know what is rated RC - which poses a challenge for all individuals and organisations who may not realize that content they are linking to is prohibited in Australia. There has been at least one case where an Australian government agency has inadvertently linked to RC content (in a published user submission to a consultation) - which was certainly not the agency's fault.

Also as the destination content of links can change rapidly, or even appear different to users from different IP addresses, there is an ongoing risk under current Australian regulation that individuals or organisations might in good faith link to valuable relevant content which is later changed. I have seen this happen myself in a book on kids' websites with links where after publication several kids' sites were sold to adult content organisations who changed the content significantly. This could affect both defamation and RC related situations.

While I am drawing a bit of a long bow from a Canadian Supreme Court ruling to other manifestations of hyperlink-related law in Australia, it is an area that requires ongoing careful consideration and adaptation to reflect what is sound and practicable, not simply what may be popular or reflect an ideal state without recourse to technical facts.

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