Something About The Law

Libel laws in Canada and the UK have come into question in two cases, the decisions of which are going to have wide-ranging implications for the scientific and internet community.

The first comes from the UK, where popular science fiction writer Simon Singh was sued on account on making certain disparaging statements against the British Chiropractic Association (BPA). The Guardian reports:

Singh was accused of libel by the BCA over an opinion piece he wrote in the Guardian in April 2008. In the article, he had criticised the BCA for claiming its members could use spinal manipulation to treat children with colic, ear infections, asthma, sleeping and feeding conditions and prolonged crying. He described the treatments as “bogus” and based on insufficient evidence and criticised the BCA for “happily promoting” them. The BCA denies these criticisms.

In the judgment, the Cour tof Appeals allowed Singh’s criticism as falling within the defence of “fair comment”, and held that it was not its place to determine the truth of the opinion based on scientific evidence unless it wanted to fall into the metaphor of the Orwellian State.

The landmark ruling will allow the writer, whose battle has become a catalyst for demands for libel law reform, to rely on a “fair comment” defence of his statements about chiropractors. It will also strengthen the position of others – from science writers and medical professionals to bloggers – who face libel suits, as the judges made clear the court was not the place to settle scientific controversies.

The text of the judgment can be found here. Paragraphs 31 – 36 neatly summarise the court’s position on the issue.

In another (yet undecided) case from Canada the Supreme Court is sitting to decide whether the practice of hyperlinking over the Internet amounts to “publication” for the purposes of libel law. If yes, this would mean that any website linking to another, the latter containing alleged defamatory material will also be liable for the contents of the latter website. From the Montreal Gazette:

The court, without giving reasons, agreed Thursday to hear an appeal from Vancouver businessman Wayne Crookes, who alleges that writer Jon Newton defamed him by linking to reputation-smearing articles in a 2006 post about free speech on his website, www.p2pnet.net.

Crookes, a former campaign organizer and financial backer of the Green Party of Canada, lost in the B.C. Court of Appeal, which upheld a trial judge’s conclusion that hyperlinks are akin to footnotes and do not constitute republication.

The hyperlinked blogs related to Crookes’s role in the Green party. Newton did not repeat the content, nor did he include any comment about the links.

Crookes contends that Newton, by creating the hyperlinks and then refusing to remove them when advised they were libellous, became a publisher by his inaction.

The B.C. Supreme Court, in an earlier 2008 ruling had held that “The purpose of a hyperlink is to direct the reader to additional material from a different source,” and that “The only difference is the ease with which a hyperlink allows the reader, with a simple click of the mouse, to instantly access the additional material.”

The implications of the ruling on free speech over the internet are enormous, beginining with the obvious chilling effect that attaching liability to hyperlinks is going to inculcate. Moreover, having such a decision enforceable only within Canada will also lead to complex questions of jurisdiction – such as, for example, what fault would be attached to an Indian website linking to an American write-up about a Canadian company.

(Author’s note: WordPress is giving me problems linking. This post will be updated with appropriate links as soon as possible.)

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