Digital Expression

The Internet has evolved as an engine of unprecedented creativity and expression. However, there are no guarantees that the underlying features of the Internet which are responsible for this burst of innovation and expression will continue to persist. These conditions are under significant stress from laws, lawsuits and technological innovations, and it is important to ensure developments in law and policy do not overwhelm important expressive activities and potentials.

Litigation

The National Post, followed by Richard Warman today withdrew their respective appeals of the important Federal Court decision in Warman v. Fournier, 2012 FC 803. The withdrawals occurred just five days before the appeal was set down to be heard before the Federal Court of Appeal. The decision has enormous implications for journalists, bloggers, and online free speech generally.

The surprise move means that Justice Rennie's initial findings stand. The Appellants challenged these, arguing that:

  • hyperlinks do not count as 'attribution' (a pre-requisite to the exercise of some fair dealing rights);
  • copyright law's limitation period applies to works published on the internet is effectively renewed daily, as the content posted to the Internet is reproduced 'every day' it remains available, leading to never ending potential liability;
  • platform hosts are liable for content posted to their sites even before they receive notice from a litigang that the content in question may be infringing; and
  • reproducing general excerpts from an original work amounts to taking a "substantial part" of the work when assessing a non-economic claim of infringement.

CIPPIC had intervened in the case and filed a Memorandum of Fact and Law supportive of the holdings of Justice Rennie at the trial level. For more information, see our resource page: https://cippic.ca/copyright/national_post_v_fournier

If you visited our website yesterday, you most likely noticed the following black-out page covering the entire cippic.ca site:

 
CIPPIC.ca joined countless other websites in going entirely dark, or at least notionally censoring, our web pages for the day.  This action was part of a worldwide protest against the U.S. Stop Online Piracy Act (SOPA) and PROTECT-IP Act (PIPA). The black-outs aimed to give web users a feel for what the internet could become under the purview of the proposed U.S. legislation -- that is, an internet where you might attempt to visit your favourite website, only to find that it was censored and blocked on the basis of aggressive U.S. content policies.

The Supreme Court of Canada ruled this morning that the online posting of a hyperlink does not constitute a publication of a defamatory statement.  This unanimous decision in Crookes v. Newton upholds online free speech rights, maintaining that an online link will only be defamatory if it actually repeats defamatory material.

In its decision, the Court largely concurred with CIPPIC's arguments at the hearing that a hyperlink merely identifies the location of an article, but does not incorporate the text or in any way adopt it.  Links among websites create the fabric of the web and play a pivotal role in social media as users rapidly share links amongst each other.  The threat of liability for the mere posting of a link would unnecessarily chill the further development of online media and social spaces.  The S.C.C.'s ruling importantly permits internet users to continue sharing links without looking over their shoulders.

Electronic Freedom Frontiers (EFF) has issued a challenge aimed at spreading and strengthening the Tor Project -- a network of servers and routing points that aims to allow anonymous and encrypted online communications and expression. EFF is calling on individuals and organizations to operate relay points that will strengthen the Tor network and help make anonymous and private online browsing a reality.

EFF provides a great video detailing how to set up your Tor relay as well as some helpful legal advice for the operation of such a relay.

CIPPIC filed its factum in Crookes v. Newton, which will decide the fate of the hyperlink in defamation law.  The case, on appeal from the B.C. Court of Appeal, has raised the issue of whether and under what circumstances posting a hyperlink to online content that contains defamatory statements can amount to publication of that content.  The plaintiff, Crookes, argues that posting a hyperlink draws the reader's attention to any defamatory statements contained in the linked article and this is sufficient to impose liability on the poster of the link.  He argues further that, by nature and convention, by posting a hyperlink the author of an article intends to incorporate the linked content into the original article.


Today, the Supreme Court of Canada granted CIPPIC leave to intervene in Crookes v. Newton.  The case, on appeal from the B.C. Court of Appeal, has raised the issue of whether and under what circumstances posting a hyperlink to online content that contains defamatory statements can amount to publication of that content.  The plaintiff, Crookes, argues that posting a hyperlink draws the reader's attention to any defamatory statements contained in the linked article and this is sufficient to impose liability on the poster of the link.  He argues further that, by nature and convention, by posting a hyperlink the author of an article intends to incorporate the linked content into the original article.

The Internet has provided the public with an unprecedented ability to communicate and share ideas while keeping their identities private. Anonymity, or the ability to conceal one's identity, has opened the door to much freer communication than would otherwise be the case. Those who fear persecution, ostracism or embarrassment are able to communicate about topics and in ways they would not risk otherwise.

Filtering has been a hot topic in the public library community since web access first became a service provided to patrons. Those in favour of filters claim that they are an effective security measure that keeps out unwanted content and does not impact on users in any detrimental way. Those opposed to filters cite instances when legitimate research material has been blocked by filters and argue that it is an excessive measure that harms more than it helps.

As an inexpensive and accessible medium of worldwide communication, the Internet offers individuals unprecedented new opportunities to publish and share information and opinions. Messages posted on websites or in discussion forums have a potentially vast audience, and can be replicated almost endlessly. This means that defamatory statements published on the Internet can have wide repercussions for affected individuals or corporations.

National Post/Warman v. Fournier, Federal Court of Appeal

Crookes v. Newton, 2011 SCC 47, (Defamatory liability for hyperlinking)

Warman v. Fournier, 2010 ONSC 2126, [2010] 100 O.R. (3d) 648, 319 D.L.R. (4th) 268 (Ont. Div. Ct.)