Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Friday, October 21, 2011

Supreme Court ruling big victory for Internet freedom

Writers and publishers can’t be held liable for online publications that link to defamatory material, the Supreme Court of Canada ruled Wednesday.

The court dismissed an appeal from Wayne Crookes, a Vancouver businessman and volunteer for the Green Party of Canada.

He contends that Jon Newton, who runs the website p2pnet.net, defamed him by publishing an article that hyperlinked to libelous material.

The case required the court to consider whether the common practice of hyperlinking exposes writers and publishers to lawsuits.

Internet and public policy experts see it as one of biggest online defamation cases to date and have been following it closely because it deals with issues fundamental to how the digital world works.

Information-sharing platforms, such as Twitter and Facebook, are built around the concept of the hyperlinking and are used daily by millions, the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, an intervener, told the court.

Ironically, Newton’s article was entitled “Free Speech in Canada.”

Crookes argued that by creating the hyperlinks or by refusing to remove them when he was advised of their defamatory character, Newton became a “publisher” of defamatory material.

Newton’s lawyer, Dan Burnett, argued a link is not an endorsement.

Two lower courts ruled in his client’s favour.

In 2009, the British Columbia Court of Appeal held that hyperlinks do not amount to a republication of an article.

The judgment upheld an earlier finding by the B.C. Supreme Court, which characterized hyperlinks as akin to footnotes, the explanatory comments often found in small print at the bottom of a page.

Hyperlinks are fundamentally different from other acts of publication, said Justice Rosalie Abella, writing for the majority.

When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of those defamatory words is the one who is publishing the libel, she said.

To hold otherwise, Abella said, would seriously restrict the flow of information on the Internet and chill freedom of expression.

In a concurring opinion, Chief Justice Beverley McLachlin and Justice Morris Fish said a hyperlink should constitute publication if the text containing the hyperlink amounts to adopting or endorsing the content it links to.

But Justice Marie Deschamps accused the majority of exaggerating the differences between hyperlinks and other online postings.

She felt her colleagues went too far in giving what amounts to blanket immunity to those who create web links to defamatory material.

A defamation action should succeed, Deschamps suggested, if an online publication deliberately linked to defamatory material so people would see it and if there were proof that somebody did.

But she also acknowledged the Internet is “dynamic.”

A hyperlink could connect a reader to material that’s entirely non-defamatory, Deschamps noted, but that material can later be altered, without the knowledge of those who created the link.

In those circumstances, she said, an “innocent dissemination defence,” should be available.

Origin
Source: Toronto Star 

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