The court ruled unanimously that ‘linking’ to defamatory material is not the same as ‘publishing’ it and therefore a website cannot be charged for libel if it links to such material – unless it takes a supporting position in the text of that link.
The case in question was brought by a businessman who had claimed that a website was jointly responsible for defaming him by linking to a libelous article on another site. However, in its judgement the Supreme Court rejected the claim and went further, outlining the crucial importance of links and the role they play in the free-flow of information on the Internet.
Had they ruled in favour of the plaintiff, they said, “[it] would seriously restrict the flow of information on the Internet and, as a result, freedom of expression”.
Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
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.
The judgement will come as a relief to Canadian bloggers, who as one-person publishing houses are ill-placed to fend off un-warranted or spurious attempts at litigation.
It also puts down a marker on Internet freedom that bloggers will hope is noted by other jurisdictions, not least because the “linking is not publishing” ruling could logically be extended to the whole vexed issue of copyright.