Last Monday, the British Columbia Supreme Court released an important decision regarding online defamation in Crookes v. Wikimedia Foundation Inc., 2008 BCSC 1424. In the decision, Justice Kelleher addressed two issues: (1) whether proving ‘publication’ requires evidence of individuals following hyperlinks, and (2) whether creating a hyperlink to defamatory material constitutes ‘republication’ of that material.
Concerning the second point, the court compared a hyperlink to a footnote that leaves the reader with the choice to follow the link. Since the reader would have no actual knowledge of the defamatory material, the court concluded that merely hyperlinking without reproduction and without further comment does not constitute ‘republication’. In light of the lack of endorsement of the materials in the facts of the case, this seems like a reasonable conclusion that appropriately safeguards freedom of expression interests in online activities. Indeed, this view has been expressed elsewhere (see e.g., here, and p2pnet’s response here).
Nevertheless, the speed, reach, and immediacy of Internet communications leaves lingering doubts about how to safeguard reputations in the online world. That is, because information on the Internet can spread so quickly through links, the severity of damage caused by defamatory material online is potentially much greater than that caused by a footnote.
A recent example of this is how on Oct. 3, erroneous information about the death and sickness of Apple Inc. CEO Steve Jobs spread quickly through the internet and caused a plunge in Apple’s share price. While the situation was quickly rectified when Apple repudiated the claim, the wide spread of false information was aided by many people posting links to originating sources. Undoubtedly, an Apple shareholder who had to sell shares that morning would have suffered a dramatic loss. Although the SEC has started an investigation into who started the rumor, it remains that the damage suffered by said shareholder stemmed in part from the innocent posting of links.
Interestingly, Justice Kelleher did not consider the immediacy of access to the information with too much weight. At para. 30, he writes,
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.
By placing the emphasis on whether the reader has a choice to follow the link, and dismissing the impact of the immediacy of access, the decision leaves no recourse for parties who are injured because of the very fact that information spread so quickly. With the outcome in this case, this is seemingly a reality that we will have to accept – a price paid for maintaining free speech online.