Legally Defined

I want to revist Crookes v Newton, 2011 SCC 47 which Simon C mentioned previously. What I find interesting about this case is the expansion of legally defined technology terms (yes I know I might be the only one who finds this interesting). There is currently a paucity of legally defined technological terms and Crookes v Newton has expanded that pool by only adding a few definitions.

Previously hyperlink has been legally defined in in the lower court ruling 2008 BCSC 1424 in para 29 where hyperlink was defined as: “A hyperlink is like a footnote or a reference to a website in printed material such as a newsletter. The purpose of a hyperlink is to direct the reader to additional material from a different source. 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 SCC in 2011 SCC 47 at para 2 has defined a hyperlink as: “…a device routinely used in articles on the Internet whereby a word or phrase is identified, often with underlining, as being a portal to additional, related information. Clicking on the hyperlink connects the reader to that information.”

In para 6 of Crookes the SCC defined a shallow hyperlink: “…a shallow hyperlink, which takes the reader to a webpage where articles are posted”. Additionally, at para 6 a deep hyperlink was described: “deep hyperlink, which takes the reader directly to an article” (this definition from Collins, Law of Defamation and the Internet 3rd ed.)

As Simon mentioned the SCC mentions social networking but does not describe it, at para 38: “The rapid expansion of the Internet coupled with the surging popularity of social networking services like Facebook and Twitter has created a situation where everyone is a potential publisher, including those unfamiliar with defamation law. A reputation can be destroyed in the click of a mouse, an anonymous email or an ill-timed Tweet.”

Previously 2007 SCC 34 went to some length on hyperlinks in the context of contracts at para 97:

A Web page may contain many links, each of which leads in turn to a new Web page that may itself contain many more links, and so on. Obviously, it cannot be argued that all these different but interlinked pages constitute a single document, or that the entire Web, as it scrolls down a user’s screen, is just one document. However, it is difficult to accept that the need for a single command by the user would be sufficient for a finding that the provision governing external clauses is applicable. Such an interpretation would be inconsistent with the reality of the Internet environment, where no real distinction is made between scrolling through a document and using a hyperlink. Analogously to paper documents, some Web documents contain several pages that can be accessed only by means of hyperlinks, whereas others can be viewed by scrolling down them on the computer’s screen. There is no reason to favour one configuration over the other. To determine whether clauses on the Internet are external clauses, therefore, it is necessary to consider another rule that, although not expressly mentioned in art. 1435 C.C.Q., is implied by it.

These definitions represent a significant portion to which technological terms associated with Internet have been legally been defined in Canada. So while it is great that Crookes adds to the body of knowledge, the fact that Crookes adds so much to the body of legally defined internet technology terms is somewhat troubling. Even, a search for the term Internet in the CanLII SCC database returns 37 cases, which sounds like a significant portion but the Internet has been our constant companion for well over a decade and in light of that the number seems a bit low. As we march towards new copyright legislation and as more technology related cases reach the SCC, I wonder how quickly this body of definitions will expand?


  1. This is interesting Mark.

    I doubt there is any way for courts to keep current with defining terms that emerge and change as rapidly as those in the technology field.

    Would my “Scan Me” T-Shirt that has a QR code linking to my various social media sites be considered a shallow link or would it be some new entity as it is not a ‘hyperlink’ per se.

    What if I created a QR code that said nasty things, what if I was someone who wanted to promote a particular agenda like Bill Whatcott? Perhaps there will be more ‘technology’ definitions that come out of the copyright cases that are being heard in December.

    I am glad you pulled this concept out of case. It is interesting to consider.

    In case my children are stalking my comments, let me finish with this:
    Just Be Nice

  2. Okay, Shaunna and I and might be the only people who find this interesting. ;)