BC Supreme Court Indirectly Affirms That TheCourt.ca Is Not Breaking The Law in Crookes v Wikimedia Foundation

Hyperlinking (the practice of publishing a link to a webpage or file), introduced with it a number of legal questions regarding publication and copyright infringement when the practice became commonplace. In the United States, many of these issues were resolved in Ticketmaster v Tickets.com, 2003 US Dist LEXIS 6483, where the court found that the practice of hyperlinking to another individual’s web page without permission did not constitute copyright infringement, stating: “there is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.”

Canadian law now advances beyond Ticketmaster with the decision in Crookes v Wikimedia Foundation, 2008 BCSC 1424 [Crookes]. The decision, although not involved with copyright law per se, defines a hyperlink even more forcefully outside of that jurisdiction because it refuses to even define hyperlinking as publication.

Wayne Crookes is a Vancouver businessman with reported ties to the Green Party who is currently engaged in lawsuits against Google, Wikipedia and numerous other internet organizations, all related to his defamation claims regarding a series of articles published about him. This particular decision concerns his lawsuit against Jon Newton, the owner and manager of p2pnet. Newton published an article about Crookes on p2pnet that did not make any assertions about Crookes, but instead linked to articles Crookes argues are defamatory and that this in turn qualifies as defamatory conduct.

This was a significant charge. The practice of hyperlinking on the internet has long since become considered as comparable to publishing a tourist’s guidebook for a city – merely stating the location of a given monument, for example, does not assert ownership of that monument, and so has linking to a website been commonly considered to not assert ownership of that website’s content (through republication or otherwise). Altering that believed status quo could have enormous ramifications for publishing on the Internet, as hyperlinking would suddenly require extensive legal scrutiny to manage (not to mention more resources than most could bring to bear, considering that the content of a hyperlink can change without notice).

However, Justice Kelleher reaffirmed the status quo with his decision, stating:

[29] A hyperlink is like a footnote or a reference to a website in printed material such as a newsletter. The purpose of a hyperlink is to direct the reader to additional material from a different source. The only difference is the ease with which a hyperlink allows the reader, with a simple click of the mouse, to instantly access the additional material.

[30] 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.

This is encouraging. However, less encouraging is the qualifier Justice Kelleher makes earlier in the decision:

Regardless, the issue in this case is not how accessible the website is, but rather, if anyone followed the hyperlinks posted on the p2pnet site. Without proof that persons other than the plaintiff visited the defendant’s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication.

The problem here is that any tech-savvy reader knows that nowadays it is quite easy to determine clickthroughs to a given site and monitor where a site’s traffic is coming from and what sites referred readers to a site. Google.com’s Analytics service does it very manageably (and for zero cost). Kelleher has unfortunately allowed Crookes and future plaintiffs an open door which instead deserved to be slammed shut, because the essence of hyperlinking is not publication, no moreso than the act of a newspaper reporting an individual’s defamatory and newsworthy speech is defamatory. The simple act of saying “somebody else says this” should not tender responsibility for what that someone else says.

Wayne Crookes is reportedly considering appealing the decision of the British Columbia Supreme Court in Crookes. If the Supreme Court of Canada agrees to hear the case, hopefully they will come down more forcefully on the plaintiff’s claim.

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