Supreme Court of Canada: No Liability for Linking

The Supreme Court of Canada issued a fascinating ruling in the case Crookes v. Newton, This case is about the question of liability for linking to allegedly defamatory content. The highest court of Canada decided that, in principle, no liability can be attributed to the person that merely links to unlawful content.

Justice Abella wrote: “I would conclude that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers. This is a tremendously compelling statement by the Canadian judge, as views on this issue vary greatly.

Remarkably, a Spanish judge established jurisprudence in the opposite direction. The District Court of Viscaya, Spain, defined 'linking to' files as 'communication to the general public'. Henceforth, the court said that by linking to copyright protected files, the file-sharing site in question published that content and infringed copyrights. Moreover, the fact that the defendant attempted to generate revenues through advertising and thus benefitted from someone else's work, led the court to this conclusion. By interpreting 'linking' as 'communication to the public', the Spanish court stated that 'linking to' can be seen as publishing someone else's work. Therefore, the file-sharing sites infringed the exclusive right of copyright holders to publish their own work.

Meanwhile in Canada, the Supreme Court regards links as merely digital references that should not be viewed as republication of the underlying content.

As Judge Abella states: “Hyperlinks are, in essence, references.  By clicking on the link, readers are directed to other sources.  Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article.” And:  “inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked.”(…) “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 - it expresses no opinion, nor does it have any control over, the content to which it refers.”

I agree with judge Abella that it is very important to establish that a hyperlink is basically a footnote , but of a more ‘content neutral’ type. The person that places a link to a certain page is not in control of the content of the page he refers to. The latter is an essential aspect of the online world: links are references to an online place containing information that may have changed at a later stage. Establishing a wide scope of liability for (hyper)links would, in my opinion, disregard to the role that linking plays in the exchange of information on the Internet and to freedom of expression. Also the judges seem to acknowledge this, as can be read in the ruling.

Of course, Spanish copyright law and the Canadian tort of defamation are by no means the same, so that may justify local differences. Also, strictly speaking, this case law doesn't decide the same legal issue as in Spain and it doesn’t decide any issue outside of Canada, but it does say that the Canadian Supreme court recognizes that there are important limits to liability for linking. Courts around the world will have to deal with the question whether a link or hyperlink by itself constitutes “publication” in terms of their local copyright act. I think this Supreme Court ruling is a very useful and constructive approach to dealing with liability and copyright issues in the online context.

Based on: Supreme Court of Canada, Oct. 19, 2011, Crookes v. Newton, 2011 SCC 47. Reference: Michael Geist