The Canadian Supreme Court has decided that publishers who link to libelous material cannot be found liable themselves for the spread of that material. It’s a rare legal protection for online publishers who are often treading on very unstable ground when it comes to this area.
Hyperlinking is fundamental to how information spreads on the web—it’s the reason why traffic spikes on some sites and also explains why false information can funnel outward so quickly. One question that publishers and lawyers have long wrestled with is whether sites are legally liable for the accuracy of material they link out to. In a major ruling today, a court offered an answer to that.
Authors should not be held liable for providing links to websites that contain defamatory material, according to the Supreme Court of Canada. The decision is a big win for online publishers. It also marks a shift in how the law weighs competing concerns about reputations and free speech.
Of course, this is one ruling in one country but it could set a precedent for others to follow. It does open the debate a little further though about the spread of material that is not true about a person or organization. This is an ongoing problem in the online world and publishers must always be aware of the potential can of worms they are opening when they link to any material that may be deemed inaccurate.
The ruling comes around a definition of a link that calls it the equivalent of a footnote in traditional written material. This is an interesting view and one that publishers love.
The case of hyperlinks is a challenge for courts because they can be considered as a form or republishing on one hand, or simply as a direction arrow on the other. The court today took the latter view, saying, “Hyperlinks are, in essence, references, which are fundamentally different from other acts of ‘publication’” and that the opposite conclusion “would seriously restrict the flow of information on the internet and, as a result, freedom of expression.”
To be clear this vote by the Canadian Supreme Court was not unanimous and dissenters had their point of view as well.
A minority of the judges thought the new principle went too far. One of these judges, noting that a link can result in a huge spike in the number of people viewing an article, said that links should be considered in the context of how they are presented.
Many of our readers are publishers as well and would probably take the side of the ruling since it gives protections to publishers. My suspicion is that this type of ruling will be looked at closely by many more and not everyone will come to the same conclusions. While most publishers are not out to intentionally slander someone those who don’t have a particularly strong moral compass can run with this one pretty hard.
So do you agree with this decision? What are your thoughts on the responsibility of those providing links to other material?