Like the legendary King Canute, who wisely resisted his courtiers’ advice to command the tides, the Supreme Court of Canada bowed to the inevitable this week by exempting the Internet from legal restrictions that have often been used to repress speech in traditional media.
In ruling that online writers can post hyperlinks to defamatory content without themselves becoming liable for defamation, the court nodded its approval to a flood that already seems beyond legal control.
The decision comes in the midst of a number of online events suggesting just that. In the Seattle area last week, a waitress destroyed the reputation of the wrong person when she inspired an Internet “flame war” against someone she mistakenly thought had failed to tip her. More seriously, Palestinian diplomat Linda Sobeh Ali was forced to leave her post in Ottawa after retweeting a link to a video, which she hadn’t watched, but which reportedly called for war “to destroy the Jews.”
Libels float so freely on Twitter that they have become their own species of communication: “twibels.”
“Defamation on the Internet may still be recognizable in content, but in form it is something without identity, boundaries, sources and ownership,” says author Charles Foran, president of PEN Canada, one of many media and free-speech groups granted intervenor status in the Supreme Court’s hyperlinks case.
By “scrambling all traditional identifiers” of the messages it contains, the Internet is “laying waste to a variety of boundaries, with privacy being perhaps the most obvious victim,” according to Foran. “Formally legislated limits on free speech aren't likely to withstand its pressures any better.”
In rejecting a claim that had been brought against blogger Jon Newton, who had posted a hyperlink to a discussion that former Green Party executive Wayne Crookes alleged to be defamatory, the court appeared to make a strong show of support for Internet freedom. But as Madam Justice Rosalie Abella acknowledged, writing for the majority, doing the opposite – ruling to repress hyperlinks – would have all but shut down the Internet in Canada.
Traditional defamation law holds anyone who repeats or republishes defamatory information liable for damages. But extending that rule to include hyperlinks would attack the Internet’s core purpose, according to Abella. “The potential ‘chill’ in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control,” she wrote, adding that strictly applying the old rule “would be like trying to fit a square archaic peg into the hexagonal hole of modernity.”
“This decision is a landmark for Canadian Internet law, in my opinion,” said Michael Pilling of Thunder Bay, host of the site where the allegedly defamatory material appeared – and still a defendant in a related action. “Hyperlinking is such a pervasive thing. It’s in blog posts; it’s in the stories of newspapers; it’s in tweets; it’s in Facebook. It’s the one common denominator of all of the social media. If hyperlinks became vectors of infection for libel suits, the chilling effects would be enormous.”
If nothing else, mere practicality demanded the court bow to current Internet practice. “If everybody who hyperlinked to a defamatory site also committed defamation, the courts would be jammed with libel suits,” Ryerson University journalism professor Paul Knox said. “From a practical point of view, their ruling is a no-brainer.”
