IP Osgoode alerts us to an interesting decision from the Court of Appeal for British Columbia that has important implications for online speech in Canada.  In an opinion issued earlier this month, the Canadian court held that Jon Newton of p2pnet news could not be held liable for linking to allegedly defamatory articles written by others about politician Wayne Crookes. The appellate ruling upheld a lower court decision last fall dismissing Crookes' case against Newton.

In much the way CMLP often does, in 2006 Newton published a blog post about a defamation lawsuit brought by Crookes against Michael Pilling, who runs OpenPolitics.ca.  In his post about the lawsuit, Newton linked to the allegedly defamatory articles in question on OpenPolitics.ca, as well as to an article posted on another website.  Newton did not reproduce or comment on any of the allegedly defamatory material.  Here's the important passage:

Under new developments, thanks to the lawsuit, I've just met Michael Pilling, who runs OpenPolitics.ca.  Based in Toronto, he, too, is being sued for defamation.  This time by politician Wayne Crookes.

¶ 88.  My underlines represent Newton's original hyperlinks to the allegedly defamatory articles. 

The Canadian decision focuses on whether providing a link to defamatory material can constitute "publication" of that material, one of the essential elements of a defamation claim.  All three Justices agreed, "the mere fact [Mr. Newton] hyperlinked the impugned sites does not make him a publisher of the material found at the hyperlinked sites."  ¶ 78. But, they also agreed that a hyperlink could constitute "publication" of third-party content under some circumstances, if the facts "demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents." ¶ 84.  The court gave as an example the statement "N is described at [hyper link]," suggesting that this might "incorporate a libel so as to be defamatory." ¶ 84.

Justices Bauman and Saunders found that, under the circumstances, Newton had not published the offending articles by linking to them. They noted that Newton made no explicit invitation to follow the links, no endorsement or adoption of the other sites' content, and the discussion of litigation in his post "at a minimum alert[ed] the reader to the potential for untrue content or disputed commentary." ¶ 89.  Dissenting, Justice Prowse found that Newton had invited or encouraged his readers to follow the links.  Her logic is a little mysterious, but Justice Prowse seemed to suggest that this encouragement or invitation flowed from the fact that the article dealt with free speech and referenced a defamation lawsuit (so compelling I guess readers just couldn't resist). ¶¶ 70-71. 

The majority and dissent also disagreed about whether the court could infer that readers in the jurisdiction actually followed the links, based solely on the post's 1,778 page views.

While this a big win for Mr. Newton, the case itself must leave Canadian bloggers and online publishers lukewarm because of the clear implication that linking to third-party content can support defamation liability under some circumstances.  Indeed, the court paid a lot more attention to specific facts and details (was there invitation or encouragement? did readers follow the links?) than it did to big picture policy questions like: Can we expect online publishers to verify the statements made in every article they link to? What will happen to debate and discourse on the Internet if we impose this responsibility on them?  Granted, the Justices rejected a per se rule that linking = publication, so perhaps some of these concerns were hiding under the surface.

From a comparative perspective, online publishers in the U.S. would appear to have it much easier.  Section 230 of the Communications Decency Act (“Section 230”) almost certainly immunizes web publishers against defamation liability for linking to third-party content, regardless of whether they invite or encourage readers to follow the link.  There's not a ton of case law on this point (in fact, nothing addresses the invitation or encouragement point in the linking context, to my knoweldge), but the plain language of Section 230 seems to fit linking as well as it fits hosting user comments. 

One U.S. case that might be helpful is Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006), in which the California Supreme Court held that Sections 230 protected Rosenthal for posting an allegedly defamatory article she received in an email from a co-defendant.  The court rejected any distinction between "actively selecting" defamatory content versus "passively hosting" it, reasoning that a contrary approach would "tend to chill the free exercise of Internet expression, and could frustrate the goal of providing an incentive for self-regulation." Id. at 527-29. A subsequent lower court decision, McVey v. Day, 2008 WL 5395214 (Cal Ct. App. Dec. 23, 2008) (unpublished), applied Section 230 to bar a defamation claim based on a link to a website provided by the defendant in an email, noting that, under Barrett, intermediaries who simply pass on information accessible on the Internet are immune from liability under Section 230.  Id. at *14. 

An interesting query is how a U.S. court would deal with the "endorsement" or "adoption" theory the B.C. case embraces. This might take an online speaker outside of Section 230 to the extent the endorsement or adoption is no longer "information provided by another information content provider." 47 U.S.C. § 230(c)(1).  We're curious whether our readers know of any U.S. cases — online or offline, Section 230 or not — that address a speaker's liability for endorsing or adopting someone else's content, without the speaker actually having reproduced the allegedly defamatory statements in question.    

Update: 4/1/10 - According to Michael Geist, the Supreme Court of Canada granted leave to appeal in this case.