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Crookes v. Newton - some useful links and "break a leg" & Long Live Links!

By Howard Knopf, Esq.

Jon Newton is a brave and principled man.Tomorrow, he and his very capable counsel, Dan Burnett,  will fight for the fundamental right to hyperlink on the internet. Here, he tells about his case. Notice that I used a hyperlink to take you to his site. What's at stake in this case is the right of internet users to use these hyperlinks in the way they are normally used.

In other words, is it legal for me to link to Jon's website, if perchcance Jon's website contains some defamatory material and I make now comment on this material?

That, of course, is the basis of the itnernet. If one cannot use links to other sites, in which the content can and often does change, and use the links merely as one would use a footnote, the Internet as we know it will simply cease to exist. I normally deplore "the sky is falling" arguments, as are currently so fashionable in Canadian music and publishing circles re Bill C-32. But in this case, the sky would fall if the Supreme Court of Canada reaches an unexpected result.

To hold otherwise would be equivalent making footnotes or references to any material that turns out to be defamatory themselves defamatory, even if there is no comment endorsing the material or conceivably if there were comment deploring it and analyzing why it is to be deplored.

The decision, if it goes the wrong way, could have clear implications for copyright law as well. This was addressed to some extent by the Supreme Court of Canada in SOCAN v. CAIP in 2004.

In a sense, it is curious that the SCC took this case because the outcome seems so inevitable and obvious. This makes one nervous because good lawyers NEVER can guarantee the outcome of case, and the British Columbia Court of Appeal was split on this one.

One hopes that the SCC will affirm the decision below and hold that linking to third party content without comment is not and cannot be by itself be considered to be "publication" for purposes of defamation law. While that seems obvious, it will be useful to have it affirmed from on high.

PS - here is  a link to the Court's site which now includes the parties (though not the several interveners')  facta. See how useful links can be!

Break a leg, Jon - as they say in show biz.

And long live links!

HK

Full post as published by Excess Copyright on December 06, 2010 (boomark / email).