Difference between revisions of "Crookes v. Newton, SCC"

From Ad IDEM / CMLA

Jump to: navigation, search
m
m (Decision Summary)
Line 6: Line 6:
  
 
<blockquote>[14]                          In British Columbia, pursuant to the Libel and Slander Act, R.S.B.C. 1996, c. 263, publication is deemed to have occurred in certain situations.  There is, however, no such presumption in relation to material published on the Internet.  Nonetheless, Mr. Crookes argued that when a hyperlink has been inserted on a webpage, it should be presumed that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published.  For the reasons that follow, I would not only reject such a presumption, I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.   
 
<blockquote>[14]                          In British Columbia, pursuant to the Libel and Slander Act, R.S.B.C. 1996, c. 263, publication is deemed to have occurred in certain situations.  There is, however, no such presumption in relation to material published on the Internet.  Nonetheless, Mr. Crookes argued that when a hyperlink has been inserted on a webpage, it should be presumed that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published.  For the reasons that follow, I would not only reject such a presumption, I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.   
 +
</blockquote>
 +
 +
Justice Abella begins with a review of the "tradition" publication rule and criticises it's broadness for catching innocent disseminators without knowledge of the contents of the original publications. "Under this sole disseminator/sole reader paradigm, the breadth of activity captured by the traditional publication rule is vast."
 +
 +
In paragraphs's 21-24, Abella notes that jurisprudence in the Britain and the United States that treats mere linking as distinct from publication, was relid upon in  ''Carter v. B.C. Federation of Foster Parents Assn.'', 2005 BCCA 398, 42 B.C.L.R. (4th) 1,'':“reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment” (at para. 12), Hall J.A..
 +
<blockquote> [25] I agree with this approach.  It avoids a formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources.  Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation in my view.
 +
</blockquote>
 +
 +
<blockquote>
 +
</blockquote>
 +
 +
<blockquote>
 +
</blockquote>
 +
 +
<blockquote>
 +
</blockquote>
 +
 +
 +
<blockquote>
 
</blockquote>
 
</blockquote>
  

Revision as of 11:20, 19 October 2011

Contents

Note

The Court is unanimous in its dismissal of the appeal. The majority describes hyperlinks as "references", fundamentally different from publication.

Decision Summary

[3] The legal issue in this appeal is whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material.
[14] In British Columbia, pursuant to the Libel and Slander Act, R.S.B.C. 1996, c. 263, publication is deemed to have occurred in certain situations. There is, however, no such presumption in relation to material published on the Internet. Nonetheless, Mr. Crookes argued that when a hyperlink has been inserted on a webpage, it should be presumed that the content to which the hyperlink connects has been brought to the knowledge of a third party and has therefore been published. For the reasons that follow, I would not only reject such a presumption, I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.

Justice Abella begins with a review of the "tradition" publication rule and criticises it's broadness for catching innocent disseminators without knowledge of the contents of the original publications. "Under this sole disseminator/sole reader paradigm, the breadth of activity captured by the traditional publication rule is vast."

In paragraphs's 21-24, Abella notes that jurisprudence in the Britain and the United States that treats mere linking as distinct from publication, was relid upon in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1,:“reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment” (at para. 12), Hall J.A..

[25] I agree with this approach. It avoids a formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources. Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation in my view.


References

Other commentary

Personal tools