With thanks to one of my Canadian students for forwarding this to me, it appears that the the Supreme Court of Canada will soon be deciding a case which will determine whether hyperlinks may constitute publication for the purposes of defamation law, such that a person who publishes a hyperlink would be potentially liable in defamation for defamatory content on the site to which she has linked. Story here.
One interesting thing about the news report (that I hyper-linked to!) is that it notes that in the United States “hyperlinking is not considered publication”. I’m actually not aware that any American case has expressly decided this yet, although I’m not a defamation expert. I know in cases like Perfect 10 v Google, courts have held that hyperlinking does not amount to copying content for the purposes of copyright law. But does this answer the publication question in the defamation context? It may be that the question is moot in the United States because many of those who hyperlink could be potentially covered by section 230 of the CDA if they are not regarded as being the “content provider” of the relevant information, although this analysis may have its limits depending on the facts.
Looking forward the Canadian decision on this one.
I don’t believe the news report is good summary of the issue in the US. If I recall correctly, the DeCSS case specifically addressed hyperlinking and said there could be liability.
That’s absolutely right. In Reimerdes, the court was prepared to grant a DMCA-based injunction against hyperlinking, although the question there also wasn’t technically “publication”, but rather trafficking in a device that enabled individuals to circumvent technological protection measures.
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