Canadian Supreme Court May Have Opened The Door For Shenanigans

Lucas Jensen | November 6, 2008 12:00 pm

Tiny Mix Tapes alerted us to the saga of pissy Canadian businessman/Green Party apparatchik Wayne Crookes, who sued some blogs–including file-trading happy site p2pnet–for saying some mean things about him. Unlike the other blogs that were sued by Crookes, p2pnet didn’t publish its nasty remarks; it only linked to allegedly defamatory material written by others. But Crookes was still, shall we say, displeased. The Canadian Supreme Court, in a landmark ruling (at least for Canada), said that linking to defamatory content is not the same as publishing defamatory content, and subsequently dismissed the case against p2pnet.

Some interesting stuff from the ruling itself:

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.

Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website. I conclude that that does not make the publisher of the web address a publisher of what readers find when they get there.

I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. 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.

That third statement does offer a bit of a caveat, but what TMT and I are wondering is this: Does this mean that hyperlinking to any potentially illegal third-party material is OK? Is there that big of a loophole here for, say, linking to torrent sites or full album downloads? Like, if somebody puts up the new GruveShroom record on a torrent site, and you link to it, without saying necessarily that it was a torrent site or what have you–if you just say, “GruveShroom has a new record out” and link to an infringing site on the words “new record,” are you in the clear? It seems to me that most torrent sites are now off the hook in Canada because they usually only link to material and don’t actually host it themselves. Maybe we need to call in a Canadian Idolawyer! Maura, if we were in Canada, we could turn Idolator into the kiddie porn blog we’ve always wanted it to be!

Wayne Crookes vs p2pnet: full decision [p2pnet]Canadian Supreme Court Says Linking to Defamatory Information Is Not Considered Publishing and Therefore Legal — Replace “Defamatory Information” with “Torrents” And We Got Ourselves a Precedent for Legal File-Sharing in Canada, Folks! Yeehaw! [Tiny Mix Tapes]