Mr Justice Kelleher in the Supreme Court of British Columbia in
Canada ruled that a hyperlink was like a footnote in that it led to
material produced by a third party which the reader did not have to
follow. The publisher of the link could not be liable for someone
else's content, he said.
"Although a hyperlink provides immediate access to material
published on another website, this does not amount to republication
of the content on the originating site. This is especially so as a
reader may or may not follow the hyperlinks provided," he
said.
Green Party activist Wayne Crookes is taking legal action against
the publishers of four articles on the internet which he says
represent a smear campaign against him. He is taking five court
cases against Yahoo!, Google, Wikipedia and others.
He also took an action against Jon Newton, who publishes the
P2PNet.net website. When Crookes took his legal action against the
other publishers, Newton published a commentary on the implications
of the action for those who run online forums.
Newton's postings included links to two of the sites which had
published the articles in question and to the articles themselves.
He posted no comments about Crookes or his integrity nor any
excerpts from the articles.
"[Crookes does] not allege that Mr. Newton wrote or posted any
defamatory words [but] that posting hyperlinks to websites
containing defamatory material constitutes publication of the
defamatory words in the latter websites," said the Court's
ruling.
Mr Justice Kelleher said that Newton should not be responsible for
the material that lay at the end of a link that was published
without further comment.
"I agree with the defendant that footnotes in an article are an apt
analogy," he said. "Where a footnote leads a reader to further
material, that does not make the author who provided the footnote a
publisher of what the reader finds when the footnote is
followed."
It was crucial that Newton had not repeated the allegations in the
allegedly defamatory articles, or commented on their worth, the
Court said.
"The defendant did not publish any defamatory content on the p2pnet
website itself," said Mr Justice Kelleher's ruling. "The defendant
did not reproduce any of the disputed content from the linked
articles on p2pnet and did not make any comment on the nature of
the linked articles. In these circumstances, a reader of the p2pnet
website who did not click on the hyperlinks provided would not have
any knowledge of the allegedly defamatory content."
Before reaching this conclusion, the Court had also decided another
contentious issue, which was whether or not the mere existence of
Newton's postings to P2PNet.net counted as publication.
"[Crookes's] case is that publication is presumed," said the
judge's ruling. "Publication is presumed where statements are made
in books or newspapers or where they are broadcast to the general
public:"
Crookes had argued that the mere fact of the material being online
and available was enough to count as publication. Newton said that
for his postings to count as publication there would have to be
proof that people had read it and had followed his links to the
articles containing allegedly defamatory content.
"The issue in this case is … if anyone followed the hyperlinks
posted on the p2pnet site," said Mr Justice Kelleher. "Without
proof that persons other than the plaintiff visited the defendant's
website, clicked on the hyperlinks, and read the articles
complained of, there cannot be a finding of publication."
Mr Justice Kelleher said, though, that it was possible for
hyperlinkers to bear responsibility for the material they linked
to.
"It is not my decision that hyperlinking can never make a person
liable for the contents of the remote site," he said. "For example,
if Mr Newton had written 'the truth about Wayne Crookes is found
here' and 'here' is hyperlinked to the specific defamatory words,
this might lead to a different conclusion."
The law on linking to defamatory content has never been tested in
the UK, said Struan Robertson, a technology lawyer with Pinsent
Masons, the law firm behind OUT-LAW.COM.
"We tend to look to a case from the 19th century for guidance
on liability for linking to defamatory material," said Robertson.
The case of Hird v. Wood involved a man sitting beside a
placard containing defamatory remarks and drawing the attention of
passers by to it. "There was no direct evidence of who provided the
placard but the defendant's action of pointing at it led to a
finding of liability," he said. "It's possible that a British court
would follow the same reasoning today."
Earlier this year a French court held sites responsible for linking
to material that illegally invaded the privacy of Olivier Martinez,
Kylie Minogue's ex-boyfriend.
"By sending the reader to the website celebrite-stars.blogspot.com
the defender had effectively made an editorial decision," the court
ruling said, in a rough translation from French. "The link in
effect is a deliberate decision on the part of the defending
organisation, contributing to the spread of illicit information,
thus making him responsible as an editor of such information."
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