Canada's top court is set to rule on whether a person can defame another by posting a hyperlink to a defamatory website — a decision that onlookers fear could cast a chill on the web in this country.
The Supreme Court of Canada is scheduled to release a ruling Wednesday morning in the case, which was brought forward by Wayne Crookes, a former Green Party campaign manager, and his company, Appellant West Coast Title Search Ltd.
Crookes is seeking damages from Jon Newton for defamation over links that appeared in an article posted on Newton's website on July 18, 2006.
Crookes is appealing a British Columbia ruling that went against him in 2008.
He argued that when Newton's Canadian website posted links to two U.S. websites that featured allegedly defamatory statements, it was the same as publishing defamatory material itself.
The website did not reproduce any of the disputed material, nor did it make any comment.
Justice Stephen Kelleher of the B.C. Supreme Court dismissed the case, saying the links were like a footnote or a reference to a website in a newsletter.
"I conclude there has been no publication," he wrote.
Crookes's lawyer, Donald Jordan, argued to the Supreme Court that a hyperlink in the text is part of the text. He said that by linking to a website, you not only invite but encourage readers to visit the site.
Jordan said internet users should be responsible enough to review material and make a judgment before linking to it.
Newton's lawyers said there might be some circumstances when an internet author might explicitly endorse an article they link to and might therefore be liable. However, they said, this case does not fall into that category.
They argued that if a person can be found to have defamed another just by including a hyperlink to a defamatory website, freedom of expression is at risk.
Media and civil liberties representatives who took part as interveners have said a ruling in Crookes's favour would cause a chill in Canada on the web and impair freedom of expression.
Robert Anderson, a lawyer representing print, broadcast and publishing industry groups, said in December that Canadian media sites would not be able to compete because hyperlinking is not considered publication in the U.S.
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