Supreme court to hear case on links, defamation

On Tuesday, Dec. 7, the Supreme Court of Canada is scheduled to hear the case of Wayne Crookes et al  vs. Jon Newton. Its ruling in this case may help determine whether the operators of websites are liable when they post links to materials judged to be defamatory.

Wayne Crookes, operator of a Vancouver-based title search company and a former Green Party organizer, alleges he was defamed in several articles posted on the internet in 2005. The defendant, Jon Newton, did not write those articles. He operates, which describes itself as “the first internet web page to carry daily, frequently updated news, stories, features and commentaries on digital media, distributed computing and associated technologies and events which haven’t been spun, filtered and pre-digested by vested corporate interests.”

On July 18, 2006, according to the case summary posted on the Supreme Court’s website, Newton wrote an article titled Free Speech in Canada, which contained a link to one of the articles Crookes alleges to be defamatory and to a website containing the other articles. The articles were also linked to each other. Crookes alleges that by linking to those articles and refusing to remove the links when asked to do so, Newton became a publisher of the offending articles.

The case is being appealed to the Supreme Court of Canada after the British Columbia Court of Appeal decided in Newton’s favour, ruling that linking to an article online did not automatically count as publication but also leaving open the possibility that in some circumstances a link might constitute publication. The minority opinion in the decision said that because Newton’s article contained words of encouragement and invitation that led to the conclusion that the hyperlink was a publication, writes Sona Dhawan in an article in The Court.

Dhawan writes that the British Columbia decision “leaves many questions unanswered about the circumstances in which a creator of a hyperlink will be found liable for defamatory materials found at a linked site. The decision is also unclear as to what are the implications are for website owners who refuse to remove the hyperlink when asked to do so.” The Supreme Court, she adds, has an opportunity to clarify the liability for linking to third-party content.

On his website, Newton wrote Monday: “Am I nervous? Extremely. But I don’t have a choice. I’ve been writing about freedom of speech for years and when Crookes demanded I take down a link to a link which linked to online posts which he claims defamed him, the only thing I could do was refuse. And I’d do it again.”