Friday, October 21, 2011

Supreme Court of Canada Rules on Hyperlinks and Defamation

If you’ve ever blogged or created content and inserted a hyperlink to information on the Web, a recent Supreme Court of Canada (SCC) case should help you sleep better, knowing it’s unlikely you’ll be liable for defamation. In Crookes v. Newton the SCC considered whether a hyperlink to allegedly defamatory material amounted to “publishing” the defamatory material.

In Canada, for someone to succeed in bringing a defamation action they must prove that the defamatory words were “published”. To be published the words must be communicated to at least one person other than the person claiming defamation.

The SCC concluded that hyperlinking is not, in and of itself, publication of the content to which the link refers.

The Facts of the Case
Crookes brought a series of law suits against people he claimed were responsible for allegedly defamatory articles published on various websites. Newton, who owns and operates a website containing commentary on various issues, posted an article on his web site that had hyperlinks to other web sites, which in turn contained information about Crookes.

Crookes sued Newton on the basis that two hyperlinks Newton inserted linked to defamatory material and that by using those hyperlinks, Newton was publishing the defamatory information. One of the hyperlink was a “shallow” hyperlink, which means it simply took the reader to web page where the articles were posted. The other was a “deep” hyperlink, which took readers directly to a specific article. In essence, Crookes argued that a person who includes a hyperlink on a webpage publishes any defamatory remarks found on the linked page because the person inserting the link has done something that has the effect of transferring the defamatory information to anyone who clicks on the link.

The Majority’s Decision
Justice Abella, writing for the six-justice majority, concluded that hyperlinks are like references and a reference to other content is fundamentally different from other acts involved in publication. According to Abella, it is the actual creator or poster of the defamatory words in the linked material who is publishing the libel when a person follows a hyperlink to that content

Abella concluded, “Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, would that content be considered to be “published” by the hyperlinker.” [Paragraph 42 of the judgement]

The Concurring Opinions
In a concurring opinion, Justices McLachlin and Fish were not willing to absolve all hyperlinkers from possible liability for defamation. Instead, McLachlin and Fish concluded that there could be some cases where the combined text and the hyperlink may amount to publication of defamatory material contained in the hyperlinked text. “If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content.” [Paragraph 48]

In a lengthy separate opinion, Justice Deschamps disagreed with the approach taken by the other justices. Instead, Deschamps favoured a “more nuanced approach” under which a reference to defamatory content could satisfy the first component of publication if it makes defamatory information readily available to a third party, if the act was deliberate. [Paragraphs 106 and 107] And, if the first component is met, the court should then turn to the second component, which is whether a third party received and understood the defamatory information. Deschamps then set out some of the factors a court could consider in determining whether to infer that a third party clicked on the hyperlink and read and understood the linked information. [Paragraph 110] Applying her approach to the facts of the case, however, Deschamps concluded that Crookes did not establish facts supporting the second component and so she too found in favour of Newton.

Conclusion: Hyperlinks are Crucial to the Flow of Information Over the Web
The SCC’s decision is obviously comforting to bloggers and others who use hyperlinks. It should also be welcome by all who use the Internet as it reflects the reality that hyperlinks are crucial to the flow of information. As Justice Abella put it, “The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.” [Paragraph 36]

Wednesday, October 12, 2011

October 13, 2011 is International Plain Language Day!

Plain Language in a Multi-Cultural Context

October 13, 2011 is International Plain Language Day. The date coincides with the anniversary of U.S. President Obama’s signing of the Plain Language Act. That law requires U.S. government agencies to use plain language in documents relating to federal benefits and services, to filing taxes, and to complying with federal requirements. A U.S. law may not seem like something we should celebrate here in Canada, but it is.

The law signals wide-spread acceptance of the belief that people have a right to understand information that has consequences to their lives. Such laws recognize that to lead healthy, productive lives, people must be able to make sense of information about money, health, and safety, not to mention rules and regulations they must abide by as members of society.

Our right to all sorts of information from governments and businesses is well recognized. For example, because of disclosure and transparency requirements we are entitled to information about privacy policies, credit card rates and terms, possible adverse reactions from medications, etc. But such information is often incomprehensible because of jargon and legalese. When that is the case, though information may be available, people are still unable to make informed decisions, which is the rationale for providing such information.

Regardless of whether plain language is mandated, businesses and organizations should be encouraged to adopt it because doing so makes business sense. There’s evidence that companies and organizations that embrace plain language spend less time answering questions and explaining things. They also benefit from being seen as being customer-centred. Government agencies that provide information in plain language often report having to spend less on enforcement and notice better overall compliance.

Plain language writing is especially critical for citizens whose mother tongue is different from the language the information is in and for those who must rely on translations. Because plain language writing limits the use of jargon and legalese, it is easier to translate and there is less chance of mistranslation. Obviously, in a bi-lingual country, not to mention in a city like Toronto, where banks, social service agencies, and other businesses often provide information in multiple languages, anything that makes translation easier should be welcomed.

The basic principles of plain language are straightforward: use short sentences and paragraphs; use common words rather than jargon; use terms consistently; organize information in a way that makes sense to readers; and use descriptive headings so that readers can find relevant information easily. Plain language writing is not rocket science, it simply requires care and commitment to helping readers understand information.

Some give the excuse that certain information, especially medical, financial, and legal information, is complicated and cannot be simplified. Such claims are based on the incorrect underlying assumption that plain language is “dumbing down” information.

Plain language is not about oversimplifying or about simply shortening things. It is about providing information in a way that people who are not specialists in the particular area can understand. Indeed, occasionally something written in plain language ends up a bit longer than the jargon-filled version, but that is usually only the case if additional background information or definitions are needed to make it understandable. The bottom line is people would rather read a longer document once and understand it than have to re-read a shorter document or get additional information or clarification.

Many people believe, as I do, that when someone uses jargon or legalese they are either too lazy to bother making it understandable and they do not care about the consumer of the information; they are not knowledgeable enough about the topic to make it understandable; or they have something to hide. As a result, I do all I can to avoid doing business with people who do not use plain language.

Individuals, society and, ultimately, democracy suffer when information is not written in language that is plain and understandable. International Plain Language Day is about putting plain language on the agenda in legislatures and boardrooms. The time has come for Canadians to embrace plain language and demand it of organizations in both the public and private sector.