Hyperlinking and ISP liability clarified by Supreme Court in Crookes case

October 20th, 2011 by Barry Sookman Leave a reply »

The Supreme Court released its reasons in Crookes v. Newton 2011 SCC 47 yesterday. The legal issue in the appeal was whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material. The majority of the Court concluded that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers. Although the case dealt mainly with that issue the Court gave expansive reasons which will have significant impacts on future cases involving Internet defamation, freedom of expression on the Internet, and the liability of ISPs for dissemination of defamatory or infringing content.

The majority reasons were delivered by Abella J., on behalf of the Coram consisting of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. The majority concluded that hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”.  Adopting a bright line test, the Court ruled that a defendant can only be liable if he/she uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff. 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. According to the Court:

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.

Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant.  In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory (Collins, at paras.  7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).

Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.  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.  Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.

The Court noted that its reasons for decision dealt only with the “deep” and “shallow” hyperlinks that were in issue in the case. The Court clearly indicated that embedded or automatic links might be assessed differently.

I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies.  As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available.  Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.

McLachlin C.J. and Fish J. wrote joint concurring opinions. They also noted that the decision of the Court did not apply to automatic or embedded hyperlinks. They agreed substantially with the majority. However, they were of the opinion that a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.  A mere general reference to a website is not enough to find publication.

Deschamps J., in separate reasons concurring in the result, would have required two criteria to be satisfied before finding liability based on the use of a hyperlink: (1) that the defendant performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form, and (2) that the defamatory matter was brought by the defendant or his agent to the knowledge and understanding of some person other than the plaintiff.

The Crookes case is not only important because of the bright line rule it developed to address when the use of hyperlinks can be defamatory. Its importance will also be measured by the expansive, policy laden, reasons of the Court and its thorough canvassing of how the innocent disseminator defence appies to ISPs.

The Court clearly took into account and was influenced by the potential impact of its decision on freedom of expression on the Internet.  According to the Court:

“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.”

“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’ (SOCAN, atpara. 40, per Binnie J.).  Hyperlinks, in particular, are an indispensable part of its operation…”

The Court’s strong language will have implications on future Internet cases that involve balancing important values such as regulating hate speech, the distribution of pornography over the Internet, and the regulation of unwanted commercial messages (spam such as under CASL) with the value of freedom of expression.

The reasons of the Court also clarify the liability of ISPs for disseminating defamatory materials under the innocent disseminator defence. The reasons delivered by members of the Court strongy suggest that purely passive and content neutral Internet intermediaries such as Internet hosts will not be liable for publishing defamatory content merely because their systems are used to facilitate the publication of the content. However, once ISPs or other Internet interemdiaries do not act in content neutral ways, or acquire actual or constructive knowledge (knowledge of circumstances to put them on notice), or are negligent in failing to find out, that their systems are being used to disseminate defamatory content, they may be liable for publishing it unless they take steps to prevent the publication.

The majority stated the following in discussing the innocent disseminator defence:

Defendants obtained some relief from the rule’s significant breadth with the development of the “innocent dissemination” defence, which protects “those who play a secondary role in the distribution system, such as news agents, booksellers, and libraries”:  Allen M. Linden and Bruce Feldthusen, Canadian Tort Law (8th ed. 2006), at pp. 783-84; see also Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN”), at para. 89; Philip H. Osborne, The Law of Torts (4th ed. 2011), at p. 411.  Such “subordinate distributors” may escape liability by showing that they “have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel” (SOCAN, at para. 89; Vizetelly v. Mudie’s Select Library Ltd., [1900] 2 Q.B. 170 (C.A.), at p. 180;  Brown, at para. 7.12(6)(c); and also Sun Life Assurance Co. of Canada v. W. H. Smith & Son Ltd., [1933] All E.R. Rep. 432, at pp. 434 and 436).

Recently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication.  In Bunt v. Tilley, [2006] EWHC 407, [2006] 3 All E.R. 336 (Q.B.), considering the potential liability of an Internet service provider, the court held that in order to hold someone liable as a publisher, “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words” (para. 23 (emphasis in original); see also Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765 (Q.B.)).

Deschamps J. expressed a similar opinion stating:

If the person who made the reference was unaware that the information referred to was defamatory, the defence of innocent dissemination may be available: Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN”), at para. 89…

Byrne and its progeny are consistent with the requirement that any finding of publication be grounded in a deliberate act. If a defendant was made aware (or had reason to be aware) of defamatory information over which he or she had sufficient control but decided to do nothing about it, this nonfeasance might amount to a deliberate act of approval, adoption, promotion, or ratification of the defamatory information (see, e.g.,Frawley v. State of New South Wales, [2007] NSWSC 1379). The inference is not automatic, but will depend on an assessment of the totality of the circumstances…

This requirement of a deliberate act has already been applied in the context of the Internet. In Godfrey, the defendant Internet service provider (“ISP”) had received a “posting”, which it stored on its news server. The plaintiff had notified the ISP that the posting was defamatory and requested that it be removed, but the defendant had allowed it to remain on its servers until it automatically expired ten days later. The court held that the ISP’s failure to act, once it had become aware of the defamatory information over which it had control, constituted an act of publication once an Internet subscriber had accessed the posting. In the circumstances of the case, the ISP’s failure to act amounted to a deliberate act of approval, adoption, promotion or ratification of the defamatory information.

In Bunt v. Tilley, [2006] EWHC 407, [2006] 3 All E.R. 336 (Q.B.), the defendant ISPs were found not to be publishers because, even though they provided services, their role in the publication process was a passive one. This aspect of the decision in Bunt is a welcome development and should be incorporated into the Canadian common law. Those whose services are used to facilitate the communication of defamatory information may be shielded from responsibility for publication if they played a “passive instrumental role” in that process (para. 23)…

A case that illustrates the nature of activities engaged in by a person who plays the role of a mere conduit is Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765 (Q.B.). In that case, the question was whether Google Inc. could be found to be the publisher of the search result “snippets” that were generated automatically by its search engine in response to search terms entered by users. Eady J. found that there was no publication, because Google Inc. played a passive instrumental role in facilitating the appearance of the snippets on the users’ screens (at paras. 50-51).

In the SOCAN Tariff 22 case referred to by the majority and Deschamps J., the Supreme Court used the innocent disseminator defence criteria  for determining whether an ISP is entitled to the “common carrier” defense in para. 2.4(1)(b) of the Copyright Act. They also applied it in ruling that an ISP that hosts copyright infringing content as a mere passive host is not liable for authorizing the communication of  that content to the public, but may become liable once it acquires knowledge of the infringement if it fails to take steps to prevent it.

Section 2.4(1)(b) is not a loophole but an important element of the balance struck by the statutory copyright scheme.  It finds its roots, perhaps, in the defence of innocent dissemination sometimes available to bookstores, libraries, news vendors, and the like who, generally speaking, have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel…

In the present appeal, the Federal Court of Appeal stated that, in the case of host servers, “an implicit authorization to communicate infringing material might be inferred from their failure to remove it after they have been advised of its presence on the server and had a reasonable opportunity to take it down” (para. 160).  Reference was made to Apple Computer Inc. v. Mackintosh Computers Ltd., reflex, [1987] 1 F.C. 173, aff’d 1990 CanLII 119 (SCC), [1990] 2 S.C.R. 209, at pp. 211 and 208, citing C.B.S. Inc. v. Ames Records & Tapes Ltd., [1982] 1 Ch. 91, at p. 110, i.e., an Internet Service Provider may attract liability for authorization because “. . . indifference, exhibited by acts of commission or omission, may reach a degree from which authorisation or permission may be inferred.  It is a question of fact in each case . . . .”  See also Godfrey v. Demon Internet Ltd., [1999] 4 All E.R. 342 (Q.B.)…

I agree that notice of infringing content, and a failure to respond by “taking it down” may in some circumstances lead to a finding of “authorization”.  However, that is not the issue before us.  Much would depend on the specific circumstances…

In the Crookes case both the majority and Deschamps J., used the SOCAN case as an authority for interpreting and explaining the scope of the innocent disseminator  defense. The Court thus applied the same innocent disseminator principles for assessing the liability of ISPs for copyright and defamation purposes when they acquire actual or construcitve knowledge that their systems are being used in a tortious way by third parties.

Deschamps J., would also have applied these principes in determining a person’s liability for hyperinking.

The Court has in the past alluded to the existence of an “innocent dissemination” defence: SOCAN. In that case, this defence was described as follows (at para. 89):

[T]he defence of innocent dissemination [is] sometimes available to bookstores, libraries, news vendors, and the like who, generally speaking, have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel.

In my view, the innocent dissemination defence should be made available to hyperlinkers, provided that the criteria mentioned in SOCAN are satisfied. There are good reasons for so holding. Hyperlinkers have not created or developed the information to which they link. Moreover, although the creation of a hyperlink may often be a deliberate act that makes the creator’s role more than a passive one, the hyperlinker often has little control, if any, over the linked information. This last point is significant given the dynamic nature of the Internet. A hyperlink may originally be created to link to information that is not defamatory, but the linked information may subsequently be altered so as to become defamatory without the hyperlinker’s knowledge. In such circumstances, provided that the criteria mentioned in SOCAN are satisfied, the innocent dissemination defence should operate until the moment the hyperlinker becomes aware that he or she is now linking to allegedly defamatory information. If this defence were widely available, it should dissuade overeager

These opinions of the Supreme Court suggest that an “innocent disseminator” in the Internet context is an entity that acts in a content neutral manner, having no actual knowledge of an alleged libel or infringement, and not being aware of circumstances to put it on notice to suspect a libel or infringement, or being negligent in failing to find out about it, and whose role in the dissemination of the information is merely passive, instrumental, and automated.

What is interesting to note about the Court’s discussion of the applicability of the innocent disseminator defense to ISP liability, is the Court’s endorsement of the principle that ISPs have to take active measures to remove or disable access to defamatory content from their systems to prevent further dissemination to avoid being liable for defamation. It reached this conclusion after considering its own copyright decision in the Tariff 22 case and after considering intervention briefs from well known advocates for free speech and human rights such as Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, and British Columbia Civil Liberties Association.

The Court’s decision in this regard is not surprising as in the Tariff 22 case the Court recommended that Parliament implement a notice and takedown system to deal with copyright infringing content. It stated that an effective process for dealing with infringing content on host systems “would be the enactment by Parliament of a statutory ‘notice and take down’ procedure as has been done in the European Community and the United States.”

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