In the same week that the Supreme Court of Canada decides Crookes v Newton, I discover the following fascinating article on SSRN:

Protecting Hyperlinks and Preserving First Amendment Values on the Internet

Anjali Dalal

Yale University – Yale Information Society Project

University of Pennsylvania Journal of Constitutional Law, Vol. 13, No. 4, May 2011

Hyperlinks are critical to communication in part because they facilitate access to information. They provide visitors on one website a way to navigate to internally referenced words, phrases, arguments, and ideas. In addition to being vehicles for communication, this article contends that hyperlinks are communicative in and of themselves. They signal user preferences, democratize the national dialogue, indicate credibility, function as a signature on a virtual petition and help establish virtual associations. This Article presents the first comprehensive examination of First Amendment concerns related to hyperlinks and argues that any judicial or legislative regulation of hyperlinks should be reviewed under a strict scrutiny standard. Nearly 50 years ago, the Supreme Court recognized a constitutional privilege to disseminate information in New York Times v. Sullivan. In Sullivan, the Court extended a constitutional privilege to newspapers because of their role as an incredibly important, unique medium of communication. The same sentiment should extend to protect new media as they emerge. This Article concludes by discussing how a strict scrutiny standard should be applied to claims alleging trademark infringement, e-trespass, copyright infringement, contributory infringement, and contract violation as a result of hyperlink use.

An excellent comment by Michael Geist on Crookes v Newton:

This decision is amongst the most important the Supreme Court has issued involving the Internet. The court again demonstrates that it recognizes the importance of the Internet for freedom of expression and for the need to promote the ability to use the technology to disseminate information. The court clearly understood both the importance of linking as well as the technology behind a link. The decision rightly places responsibility for defamatory speech where it belongs – with the person who posted the content. There is still the ability to commence legal action against that person, but subjecting anyone that links to allegedly defamatory content to potential liability would have been very dangerous.

“Immanuel Kant should be banned…”

I’m struggling to think of the last time I heard anyone in Scottish politics say “I believe in free expression“, without following it with a “but”, or some other pious caveat, justifying illiberal legislation to put peoples’ tongues in the vice, fetter their fingers, or otherwise curtail free speech. This is not a uniquely Scottish phenomenon, of course. The whole rhetoric of balancing rights against one another lends itself to this sort of discourse, where one can simultaneously avow your watery support for a range of competing propositions – free speech, protection of minorities from “hate”, public order – and having recognised a range of entangled interests, and completed the relevant obeisances to all sides, unembarrassedly legislate, untroubled by dissonances as you obliterate the substance of liberty.  All of which is done with a greasy air of self-justification and secular homily; a ludicrous pantomime parade of beetled brows and serious faces, as pompous moral vocabularies are dusted off to justify a range of reactionary reforms.  Politicians assume grave airs to have their photos snapped by Amnesty International – all too happy to condemn repressive regimes abroad for jailing bloggers, writers, speakers – but seem to struggle to find the time even to shrug about domestic outrages.

Crookes v Newton 2011 SCC 47 (CanLII) (19 October 2011)

From the headnote (emphasis added):

To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

From the judgment of Abella J (who wrote for the majority, Binnie, LeBel, Charron, Rothstein and Cromwell JJ concurring; McLachlin CJ and Fish J concurring only in part; Deschamps J effectively dissenting) (emphasis added):

[31] … This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression …

[32] … Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation. That began to change when the Court modified the “honest belief” element to the fair comment defence … and … developed a defence of responsible communication on matters of public interest. These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundational role of freedom of expression in the development of democratic institutions and values …

[33] Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications …

[34] The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged” … Hyperlinks, in particular, are an indispensable part of its operation.

[36] The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. 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. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.