an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday, in a landmark decision, the Canadian Supreme Court unanimously ruled that hyperlinking to defamatory content is not inherently defamatory behavior. By limiting the application of Canada’s defamation law, the Court preserved free expression and communication online and, by its own estimation, recognized the dangers of “trying to fit a square archaic peg into the hexagonal hole of modernity.” While this decision is the first of its kind and sets excellent international precedent, the rationale does not provide a comprehensive rebuttal to the attack on hyperlinks.
Justice Abella’s majority decision emphasized the importance of ensuring the robust use of hyperlinks on the Internet as means to securing an Internet ecosystem that remains supportive of free speech. Justice Abella writes, “The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness…would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.”
The language the Court uses and the decision reached are precisely what is needed to combat the rise of hyperlink litigation stemming from concerns about trademark infringement, e-trespass, copyright infringement, contributory infringement, and contract violation. Additionally, the Court’s rationale, that a hyperlink alone does not constitute publication of the linked-to content is eminently reasonable and by and large will achieve the broader goals intended by the Court – to promote free expression while without actively facilitating defamation.
However, the Court’s bright line rule -- a link, without any of the linked-to content included with it, would not, in and of itself, be considered defamatory -- leaves open some very important issues. In particular, what the Court fails to recognize (though it is touched upon in the concurring opinion written by Chief Justice McLachlan and Justice Fish) is that there are instances when the publication of a link would very well seem to amount to publishing the linked-to information.
For example, imagine an aggregator website dedicated to kiddie porn. The aggregator would simply include links to websites with kiddie porn. No other content from the linked-to page would be included on the aggregator website. In that instance, under the Court’s rationale, it would seem that the aggregator page would be protected because all it did was publish a link. Nothing more. No kiddie porn from the linked-to pages was included on the aggregator’s page so the aggregator has not committed any kiddie porn related crime.
A Proposed Solution:
To prevent dilemmas such as these, I suggest moving from a bright line rule approach to one that allows judges to protect legitimate uses of hyperlinks while prohibiting illegitimate uses of them.
Such an approach requires that we first recognize hyperlinks as critical to communication not just because they facilitate access to information, but also because they can be communicative in and of themselves. They can signal user preferences, democratize the national dialogue, indicate credibility, function as a signature on a virtual petition and help establish virtual associations. Because of this communicative role, hyperlinks should be granted the ultimate in First Amendment protection -- a constitutional privilege like that given to newspapers in New York Times Co. v. Sullivan. With such a privilege, any limitation on the use of hyperlinks should be reviewed under an exacting strict scrutiny standard.
The exacting “actual malice” standard applied in New York Times Co. v. Sullivan was created to presumptively protect the medium of the newspaper and, more importantly, the purpose of the medium. A newspaper serves its function when it is free to comment and report on issues of public interest, including public figures. To apply a lower standard would have threatened the newspaper’s ability to serve its purpose.
The same sentiment should extend to protect new media as they emerge. The Internet is a powerful medium whose power derives from the robust use of links. Without the hyperlink, navigation would be nearly impossible, and filtering content would be incredibly time-consuming. It is for this reason that hyperlink users must be granted a similar constitutional privilege.
Extending such a constitutional privilege does not mean permitting linking when it clearly intends to facilitate illegal behavior. A standard that requires plaintiffs to show that defendants possessed a requisite mens rea to facilitate illegal behavior provides presumptive protection of hyperlinks while also avoiding the creation of a bright line rule that unintentionally protects “low value” speech.
For those interested, I have explored this argument a bit further in a recently published paper.