Colleen Spring Zimmerman, Partner
Fogler, Rubinoff LLP
cspringzimmerman@foglers.com
January 9, 2012
Crookes v. Newton [2011 SCC 47; 311 DLR (4th) 647 (SCC)]
In late 2011, the Supreme Court of Canada (SCC) defined the function of hyperlinks on websites and, in so doing, dealt with some novel issues raised by the Internet. This was a libel case involving a claim that the Respondent (Newton) defamed the Appellant (Crookes) by posting a hyperlink to a third party's alleged defamatory material. A hyperlink [1] is a reference to data that the linkee can directly follow to access the target document. The SCC was clear that the link itself will not be viewed as a publication in a defamation action. However, the addition of commentary approving or adopting the content of the target document could give rise to liability. The Court held that the use of a hyperlink cannot, by itself, amount to publication, even if the hyperlink is followed and the defamatory content accessed.
The Respondent operated a website in BC commenting on various matters. In one of the articles he posted at his website, there were shallow and deep hyperlinks to other websites which in turn contained information about the Appellant. The Appellant argued that the hyperlinks connected to defamatory material and that, by using those hyperlinks, the Respondent was publishing the defamatory information. The Respondent had voluntarily included these hyperlinks at his site. He refused to take them down when requested. The Respondent's website had been viewed about 1,800 times, which made it likely that persons had followed the hyperlinks and accessed the target documents. Furthermore, the context of the Respondent's article suggested that readers were encouraged to click on the links.
The fact that access to the content is far easier with the hyperlink than with footnotes or other references does not change the reality that a hyperlink, by itself, is content neutral. The actual creator or poster of the target document is the person who is publishing the libel. If the hyperlinker presents content from the target document in a way that repeats the defamatory content, that content could be considered to be published by the hyperlinker. The Respondent's website was held not to be defamatory since use of a hyperlink cannot, by itself, amount to publication. Even if the hyperlink is followed and the defamatory content is accessed, the Respondent has not published the defamatory content.
Proposed tariffs for royalty/fee purposes in copyright matters want to define "a copy" as including a digital copy "made by or as a consequence of posting a link or hyperlink to a digital copy". There could then be a demand for payment for any target documents that are linked or hyperlinked. For instance, a copyright collective may want the right to audit the secured networks inside universities, including professors emails, to monitor such links and hyperlinks.
Does this decision have any relevance to such a proposed tariff and the definition of "a copy". If a link or hyperlink by itself does not constitute "publication" for defamation purposes, could it, by itself, constitute publication or reproduction as covered by the Copyright Act. Section 3 of the Canadian Copyright Act states that copyright means the sole right to produce or reproduce the work ... in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication... and to authorize such acts. Infringement centres around this concept, as does, the right of the copyright holder to enter into licensing arrangements and to seek payment for production, reproduction and communication.
The SCC said, that without hyperlinks, the web would be a library without a catalogue: full of information, but with no means of finding it. Limiting the usefulness of hyperlinks 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 facts in this case can be contrasted with those in Century 21 Canada Limited Partnership v. Rogers Communications Inc. (2011 BCSC 1196), a decision of the Supreme Court of British Columbia.[See our IP Currents Dec 2011 Vol. 1) A subsidiary of Rogers operated a website, Zoocasa, which included hyperlinks for property listings that directed the user to the website of the listing agent or broker for each specific property listing. Therefore it indexed real estate property listings from multiple websites and in so doing, copied and indexed property descriptions and photographs from a Century 21 operated website. Zoocasa was held liable for copyright infringement, as well as for breach of contract, based on the Terms of Use at the Century 21 website. The defence of fair dealing with respect to the copyright allegations failed. The Court upheld the Terms of Use.
Practical Points: The larger issue is the extent to which a website owner is responsible for what appears at its website. The SCC's decision offers a general reaffirmation of the Court's continued commitment to maintaining an open Internet.
While a hyperlink, by itself, is not publication in a defamation action, the hyperlinker must be very careful not to add commentary approving or adopting the content of the site to which the link points and, from a copyright perspective, not to copy or authorize or induce copying of the target document (as in the Century 21 case). This could give rise to liability in the hyperlinker.
The overall purpose of the hyperlink must be looked at. Is the clear purpose to take one to copyrighted content and to induce the reproduction of the target document? To what extent is this for revenue generation? Can the SCC case be narrowly defined to say that a link does not make the hyperlinker liable in defamation for having republished a libel, but it does not have anything to do with whether there is copyright infringement. The Zoocasa case says that the Defendant can be found liable for copyright infringement.
Colleen Spring Zimmerman is a member of Fogler, Rubinoff’s Intellectual Property Group, which provides a full range of intellectual property legal services, including protecting, licensing and enforcing intellectual property.
[1] The Concise Oxford English Dictionary defines hyperlink as computing a link from a hypertext document to another location, activated by clicking on a highlighted word or image. The document containing the hyperlink is known as the source document. The effect of following a hyperlink is access to the target document. Hyperlinks are often used for reference materials.