Hyperlinks Libel Ruling No Win for Free Speech

The Internet is an unruly place open to almost everyone, and seemingly without any real boundaries. Billions of bits of information are published, shared and commented upon continually.

Regulating the flow of online information in any meaningful way is thought by many to be an impossible task, and certainly more difficult than regulating traditional forms of media. But in cases where bloggers, tweeters and others use the Internet to libel someone, we don’t have any choice but to find a way to intervene.

In that light, a recent ruling by the Supreme Court of Canada falls disappointingly short of protecting any of us from online smear campaigns or attacks on our reputations.

Defamation is a long-standing component of civil law. Simply put, if an individual publishes statements that are injuriously untrue about a second person, and others read, see, or hear the information, the person doing the publishing could be held legally liable.

Defamation laws are a mixed blessing at the best of times. While they bring some order to public discourse, and provide some protection against people publicly lying about you, they can also be used by powerful interests as a means to prevent journalistic publication of reliable information, an action known as “libel chill.” It works sometimes and sometimes not.

Yes, we’re all entitled to our views, but we’re not entitled to purposefully malign others as just another Internet pastime.

The emergence of the Internet has allowed exponential expansion of the number of people able to publish their every thought online. In the past, journalists were the most likely of our citizens to find themselves embroiled in a defamation case because they were our only citizens with the option to publish information routinely. Today, defamation suits are on the rise in Canada because of loose “tongues” in online blogs, and discussion sites.

In one such case, a blogger posted comments about a Green Party political organizer that the organizer considered libelous. In a subsequent court filing, the organizer also sued a second blogger who posted hyperlinks to the online site where the original comments were posted.

Third party protected

The Supreme Court of British Columbia determined that while the Green Party organizer’s legal action against the person who posted the comments about him could be heard, the complainant could not sue the third party who simply posted the hyperlinks—even though more people might see the original comments as a result.

The party organizer then appealed to the Supreme Court of Canada, which upheld the B.C. court ruling. In part, the Justices wrote:

”Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. 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.”

In other words, unless a “hyperlinker” describes the link by saying something like “low, down rotten businessman gets what he deserves,” the act of linking is not in itself enough to make the “hyperlinker” liable for libel.

The ruling doesn’t change the basic premise of defamation law, but it does ignore the potential for someone to use passive measures to cause injury to someone else.

It is of course possible that a blogger could post a link to another website with no intention of hurting a third party, but it is also possible that a blogger could knowingly post hyperlinks to a site that contains libelous statements about a third party and with the specific intention of directing web users to the site.

Was harm intended?

The Supreme Court has decided that the act of placing a link is not the same as publishing libelous statements. But the law should also concern itself with the intention to do harm, whether on the Internet or elsewhere.

Some have suggested that the Supreme Court had no option when you consider the billions of hyperlinks one might click on during your Internet travels. In other words, regulating links would amount to an impossible task.

Yet, of all the online links, the only ones of concern in this context are those that purposely seek to damage the reputation of someone else, and they would presumably only come to light when a defamation civil suit is launched as part of the process.

Even in coming to light, the person bringing the libel suit would have to convince the court at an early stage that the “hyperlinker” intended to harm them, which would in no way be obvious or easy to do.

And if the linking was unintentional, the “hyperlinker” could mitigate the damage by removing the link, or invoking the already-existing defamation defence of “innocent dissemination,” which protects third parties in a dispute such as booksellers who may contribute to the spread of defamatory material unintentionally.

Some say the idea of absenting “hyperlinkers” from all responsibility is a win for online freedom of expression.

Hardly. Encouraging “hyperlnkers” to think twice about where and what they are linking to is a good thing, and might microscopically reduce the millions of online Web links. To suggest that forcing them to do so amounts to a form of libel chill is absurd.

Making “hyperlinkers” more responsible for their posts will not substantially diminish the general nature of online content as it exists today, but it will be consistent with the general principles of free speech.

Yes, we’re all entitled to our views, but we’re not entitled to purposefully malign others as just another Internet pastime.

Terry Field is Troy Media’s media analyst and an associate professor in journalism and chair of the journalism major in the Bachelor of Communication program at Mount Royal University, in Calgary, Alberta, Canada.

Courtesy of Troy Media