The linking between defamation and copyright

The Supreme Court of Canada recently ruled in favor of Newton in the Crookes v. Newton, declaring that this specific use of linking to allegedly defamatory material did not constitute publishing. A number of people have suggested this has links to policy discussions in copyright where sites like ISOHunt that allegedly "just link" to content should be equally immune (See article by Jesse Brown as an example).

I think this requires more than a cursory look at both what the Supreme Court said and the policy being proposed to be added within C-11.

In Crooks v. Newton the judges did not suggest that all linking was immune. There are qualifications to that immunity offered using different language from different judges.

Per Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.:

Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

Per McLachlin C.J. and Fish J.:

The reasons of the majority are agreed with substantially. However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.

Per Deschamps J.:

In order to satisfy the requirements of the first component of publication, the plaintiff must establish, on a balance or probabilities, that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form.

In other words, context matters. To translate this general policy into a copyright context, if the courts find that links being made are a deliberate act to make infringing material readily available, the entity linking wouldn't be immune.

Copyright bill C-11 will add a new type of secondary infringement relating to the provision of services.

27(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

I will for the moment allow the legal community to spend years debating the meaning of "designed primarily to enable" (and the odd focus on "digital" yet again).

We will eventually get multiple worded interpretations from the supreme court, but it will come down to something similar to what was decided in the defamation case. Linking to material without endorsing defamatory or inducing infringing activities will not make one liable, but if you are trying to use linking to get around the spirit of the law then you won't be immune.

In the United States they had a case MGM Studios, Inc. v. Grokster, Ltd where their Supreme Court held the following:

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

While I believe the new "inducement" standard set out by the United States Supreme Court is more clear than what we see in Bill C-11, the general theme is very similar.

I for one won't be very sad when ISOHunt, yet another pillar of the false claim that Canada is a "piracy haven", closes.

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Context or content?

I believe your analysis isn't quite on, as far as the majority opinion is concerned. There, as you quote, hyperlinking itself is not shown to be defamatory - the person hyperlinking is defaming when they repeat defamatory content. I think it's important, as well, that even in this case there's no indication that the linking itself is in any way publishing the content - they state only that the hyperlinker is publishing the content by, in fact, repeating it. So "GrayG rapes puppies, see (here) for proof" is defamatory in itself. Presumably (and good thing too) this would extend to links such as "" also.

To put it in copyright context, if I use a copyrighted image (still frame) to link to a copyrighted work from which it is taken, the image itself would have been published, potentially infringing. A simple pointer is not publication, even if I say "here's a copy of this copyrighted work, check it out".

The first dissenting opinion does go much further, and would suggest that this latter example is infringing (extended to copyright rather than defamation). But it is, after all, a minority opinion, not a decision.

Why do people want to protect ISOHunt?

On Google+ I asked the question: Why do people want to protect ISOHunt?

The answers and discussion there may be of interests to people reading this article as well.

To GreyG,

In defamation law you need to publish, but in copyright law there is more than just copying, distribution, communication, performance, (etc...) that makes someone liable. If it can be said that you are authorising the infringing activity (possibly as simple as saying "here's a copy of this copyrighted work, check it out" where is is clear you know that rights are not cleared), then you can be found liable.

I believe the question of authorisation is the basis of the existing lawsuit against ISOHunt. It may turn out that the secondary infringement modifications to the copyright act for services "designed primarily to enable acts of copyright infringement" are unnecessary.

You may disagree with the authorisation aspect of existing copyright law, and that would be a valid policy position to have. I just note the fact that defamation and copyright have different legal standards for liability.