Everyone with whom I have discussed the issue of Internet linking agrees that Internet hyperlinks are a form of citation. But the subset of the population with whom I discuss these issues is not representative of the entire world, clearly. There are 2 schools of thought that I’ve encountered thus far that substantially differ from the above:
- The folks who think you need to obtain permission to link to another website, and
- The folks who think the author/owner/host/ISP of a webpage are responsible for any content accessible via hyperlinks on that site.
Neither one of these perspectives makes a whit of sense to me, seeing as I conceive of hyperlinks as akin to footnotes or citations, not republication of the material to which the link directs. Republication would be copying content on one webpage and posting it (in a manner beyond that permitted by fair dealing/fair use) on another page.
Because I can’t really understand how a hyperlink could actually be considered republication rather than citation, I am dumbfounded by people who adhere to – and sometimes threaten legal action in accordance with – either of the above two viewpoints. I actually find myself a bit stymied when pressed to defend my stance that hyperlinking is citation, because the alternative is so ludicrous in my mind. I need to work on this, which is why I’m posting this here.
1. Permission to Link
I have encountered a few individuals who have adamantly insisted that their websites were their property and thus they had the rights to dis/allow linking to their web content. I have actually been threatened with legal action from a blogger (with a PhD – which led me to expect that she’d at least be able to research the actual law) who insisted that I not link to her weblog from a password-protected site, which I found incredible! (In this specific case, although I knew she didn’t have a legal leg to stand on, I removed the link because I liked her writing and didn’t really want to make her mad, and also because I didn’t want to sink energy into a fight, but stopped following her blog lest I accidentally post a link she didn’t approve again.)
Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary
in order to save the newspaper industry (from the competition of free news aggregation sites). While I have great sympathy for the difficult times the newspaper industry is experiencing in this era of digitization, the above suggested curtailing of fair use/fair dealing is appalling.
My understanding is that nothing has been legally established in Canada about permission-to-link, but in the U.S. there is a bit of case law establishing that (in the absence of other factors such as defamation or violation of – in Canada – moral rights) as BitLaw states,
“there would appear to be no legal means for preventing someone from including a link in one page to another”
2. Liability of Link-maker
SO, the Supreme Court of Canada has apparently agreed to hear Wayne Crookes’ appeal of a 2008 BC ruling (an appeal that was dismissed from BC Supreme Court) that linking to websites that contain allegedly defamatory material is not in and of itself defamation. Vancouver-based Crookes has sued a bagload of folk for libel based not on things they wrote on their websites but on thinks written on sites they linked to, or sites those sites linked to.
Whoa. Similar to how ISPs should not be responsible for the content of their customers, web authors should not be held responsible for the content on pages they link to! Citing something, in traditional publication, is hardly the same thing as agreeing with it, let alone authoring it. Hyperlinking is like citing – a pointer, a reference.Hyperlinking is not - as I think I clearly distinguished above – republication of content.
Hopefully the Supreme Court of Canada has agreed to hear this in order to set precedent (in accordance with the BC courts decisions) and thus stop the free-expression chill that such SLAPPs create. The alternative is just too ludicrous, right?