Crookes v. Newton: Speculations on Intermediary Liability….

Perhaps the thorniest of emerging Internet legal and policy issues these days is the question of Internet intermediaries. It is a feature of the Internet that all online activity is intermediated through at least one and often several service providers, such as ISPs, social networking sites, blog hosting sites, etc. Standing at the crux of all this activity, intermediaries are uniquely placed to exert a great deal of control and surveillance over activities of downstream users, making them a compelling target for policy-makers and aggrieved plaintiffs alike. The Supreme Court of Canada’s recent seminal decision in Crookes v. Newton offers a general reaffirmation of the Court’s continued commitment to maintaining an open Internet and a vindication for hyperlinkers everywhere. More than that, however, it offers some potential insights into how our Canadian legal system might react if faced with future attempts to leverage Internet intermediaries.

One common mechanism for doing so is to impose liability on them for the activity of others. Secondary liability of this kind is typically different in character from stricter liability regimes applied directly to primary authors, and includes a ‘notice’ element. This means intermediaries are not typically obligated to take pre-emptive steps against downstream infringing content, but must still take specific actions upon being asked to or being made aware of alleged rights infringement or face liability in their own right. Common law obligations arising from such notification may include various categories of takedown requirements: a blogger taking down a ‘flagged’ defamatory (or, perhaps, as IP infringing) comment/post after being notified; a blogging platform taking down a blog that has been ‘flagged’; a domain name registrar seizing the domain of a flagged blogging platform; an ISP blocking access to an IP address of a flagged service. Even more aggressive responses have been undertaken by intermediaries voluntarily under threat of liability. Some have adopted a ‘3 strikes’ policy, where 3 accusations of copyright infringement against a customer leads to disconnection, as settlement in a lawsuit initiated by copyright holders.

What does all this have to do with hyperlinking? While a hyperlinker is not an intermediary, she shares essential characteristics with most intermediaries, in that both play primarily facilitative roles. The intermediary provides access to content created by others, while the hyperlinker merely draws reader’s attention to that content. Crookes squarely raises the question of the extent to which we should be making individuals liable for what others have done. In answering this question within the context of defamatory publication, the SCC adopted an approach that affirms a basic, but critical principle of common law — that individuals should not easily be made responsible for the actions of others. As secondary responsibility is at the core of intermediary liability issues, Crookes may inform the Court’s ultimate stance on the latter. We are likely to see the question of intermediary liability recur in Canada in the future, so it is worthwhile speculating on ways the Crookes decision may impact on any such future consideration.

a. Freedom of expression and the Internet
In keeping with its recent jurisprudence (see Abella, J., para. 32 for a synopsis of this trend), the majority ruling in Crookes justified its decision on the grounds that existing defamation common law principles conflict with a Charter right, and should adopt to account for this. What is interesting is the manner in which the Court leveraged free expression in this case to “avoid[] a formalistic application of the traditional publication rule” [Abella, J., para. 25].

This ‘leveraging’ is evident in the following majority statement:

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. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity. (Abella, J., para. 36)

The Court appears to be drawing links between the right to free expression on the one hand, and the utility of the hyperlinking mechanism, the free flow of information and, more broadly, the Internet itself. The importance of the Internet as a communicative platform has recently been tied to the freedom of expression by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression:

Unlike any other medium, the Internet enables individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an “enabler” of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole.

This is an important development when viewed within a growing international discourse on the interaction between freedom of expression, the proper role of Internet intermediaries and the need to achieve various public policy objectives such as protecting reputation online. This discourse is also gravely concerned with the detrimental impact to freedom of expression that will result from saddling intermediaries with liability for the content of others. Notification-based intermediary liability will, in effect, transform allegations of wrongdoing into restraints on speech quickly, cheaply, and typically before any judicial processing of such allegations has occurred. The reverse onus is then placed on often under-funded users to challenge this claim in court.

In his report, the UN Special Rapporteur unpacked these concerns in greater detail:

…a notice-and-takedown system is…subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown. Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decisionmaking process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.

Our own Supreme Court flagged similar concerns (albeit in the context of copyright infringement) in its assessment of authorization-based intermediary liability in SOCAN v. Bell:

The knowledge that someone might be using neutral technology to violate copyright …is not necessarily sufficient to constitute authorization, which requires a demonstration that the defendant did “(g)ive approval to; sanction, permit; favour, encourage” (CCH, at para. 38) the infringing conduct. I agree that notice of infringing content, and a failure to respond by “taking it down” may in some circumstances lead to a finding of “authorization”. However, that is not the issue before us. Much would depend on the specific circumstances. An overly quick inference of “authorization” would put the Internet Service Provider in the difficult position of judging whether the copyright objection is well founded, and to choose between contesting a copyright action or potentially breaching its contract with the content provider.

The potential impact on expression that motivated the SCC in Crookes is magnified significantly in the context of intermediary liability. Much as with the hyperlinker, intermediaries are chilled from communicating the content of others by the threat of notice-based liability. As with hyperlinker chill, fear of liability causes intermediaries to err on the side of over inclusion. Most accusations of defamation are treated as legitimate, because the intermediary (or hyperlinker) is not in a good position to assess defences such as justification (or, with respect to copyright, fair dealing).

The impact of intermediary chill, however, is more significant than with hyperlinkers, as it is applied platform wide and impacts on downstream expression as well. In a notice-takedown regime, it amounts in effect to a restraint on downstream expression. The primary speaker is prevented from making her statement because the intermediary prevents them from doing so. With notice-takedown liability, this occurs before a judicial finding of defamation has been issued as the intermediary must react quickly to avoid liability in their own right. Such an approach is at odds with the Courts hesitant approach towards issuing injunctions in defamation cases, an option viewed as an “exceptional remedy” reserved for cases where the statements at issue are “manifestly defamatory” (See Canadian National Railway v. Google Inc., 2010 ONSC 3121). Far from applying this rigid standard, notice-takedown regimes are strict liability once the notice has been received, meaning a statement ultimately found defamatory (but still far short of the ‘manifestly’ standard) will lead to liability for the inactive intermediary. Further, as noted above, intermediaries are not remotely well-placed to make such assessments, whether manifest or not.

Where Intermediary liability leads to user disconnection, it is a particularly thorny issue, as it can deprive users from access to an entire communications medium on the basis of one minor facet of their use of that medium. Yet intermediaries are increasingly pushed, under threat of liability, towards adopting voluntary disconnection policies. This raises issues of proportionality, as it involves denying users who have committed one form of infringement (copyright, for example) from access to an entire platform of expression:

The Special Rapporteur is cognizant of the fact that, like all technological inventions, the Internet can be misused to cause harm to others … The Special Rapporteur emphasizes that censorship measures should never be delegated to private entities, and that intermediaries should not be held liable for refusing to take action that infringes individuals’ human rights … While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

Once in place, these voluntary disconnection programs are difficult to dislodge, even after liability issues are clarified ex post. As a broader ‘reconsideration’ of the publication rule appears imminent (Crookes para. 42), and in the absence of a legislative response to defamatory intermediary liability, the buffer provided by Crookes against the use of common law liability as a means of chilling free expression may potentially play a role in defining future intermediary liability or lack thereof.

b. Passive instrumentality of Internet intermediaries
Another factor relied upon by the majority in rejecting hyperlink liability is the passivity of the act of hyperlinking. Historically, even the most tangential participation in the publication chain was sufficient to incur liability. The majority in Crookes points, for example, to the printer’s servant found a publisher in his own right for an act no more significant than the ‘clamping down’ of the printing press (Abella, J., para. 18).

However, as the majority points out, this principle has slowly eroded over time. The Court referred in particular to two UK cases, one against an ISP and one against a search engine and a web host, in concluding: “[r]ecently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication.” (see paras. 21; also 89-90).

In Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765, Justice Eady of the U.K. Queen’s Bench held at paras. 63-64, consistently with Crookes, that where intermediary conduct is limited to merely ‘facilitating access’ or is ‘passively instrumental’ with respect to allegedly defamatory content, publication has not occurred irregardless of whether the plaintiff has requested a takedown or not. Liability remains with the primary author, in such scenarios, and it appears that factors such as ‘passivity’ and ‘instrumentality’ will play a factor in defining the scope of liability. Knowledge and control appear to play a significant (but not determinative) role in assessing the level of passivity, with both factors being necessary, if not sufficient. However, some legislative regimes such as Chile’s recent copyright law have recognized that intermediaries can only be deemed to have ‘knowledge of infringement’ after they are provided with judicial notice of infringing content. If ‘control’ and ‘passivity’ are to be adopted as a new touchstone for publication-based liability, the question of what will qualify as sufficient ‘control’ remains open.

c. Defamatory vindication & control
This focus on primary as opposed to secondary authors as the proper home for vindication also played a significant role in shaping the majority decision. In refusing to apply the traditional publication rule to hyperlinkers, it held:

[40] Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory…

[41] Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations. As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to. If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content.

[42] 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, should that content be considered to be “published” by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.

While the majority left to another day the question of what constitutes ‘hyperlinking in a manner that conveys defamatory meaning’ (a concurring opinion by McLachlin, C.J. and Fish, J., suggests an ‘endorsement’ standard while the majority may have opted for something more rigorous), the concept that responsibility rests with the primary author is consistent with the normative underpinnings of defamation, if not its historical tendency to catch all participants in its publication web. A finding of defamation is not solely a compensatory regime. A judicial declaration that the author of a statement was ‘wrong’ offers the plaintiff vindication:

This case involves international defendants and activities, suggesting caution and restraint. However, I agree with the motion judge that even if the Ontario judgment is unenforceable in the United States, a judgment would have significant value to Black as a vindication of his Ontario reputation. Black v. Breeden, 2010 ONCA 547, (Ont. C.A.), leave to appeal to S.C.C. granted.

Normatively speaking, it is difficult to see how refusing to remove a comment made on a blog upon request, or to block access to one of the trillions of websites to which an ISP facilitates access is an act that calls for this type of ‘vindication’. Absent liability, many if not most Internet intermediaries premise their takedown decisions on the desire to facilitate interactions on their platform, not necessarily on their approval or disapproval of any single comment. In any case, as pointed out above, intermediaries are not very well placed to assess the defamatory nature of such content (particularly where complex legal concepts such as justification, fair comment or fair dealing must be considered).

There may be practical reasons for maintaining some form of intermediary liability. The Court stresses repeatedly that hyperlinkers have no control over the underlying content — indeed, once the linked content is removed, the hyperlink is immediately stripped of any defamatory import. This is different for intermediaries, who may exercise control over the originating content and restrict access to it. But, stripped of the need for ‘vindication’, what is left are practical considerations and these may well be outweighed by the detrimental impact on free expression that may ensue from imposing liability.

d. Section 230 of US CDA ‘creation or development’
In reaching its decision on the scope of hyperlinking liability, the Supreme Court also relied on part on section 230 of the U.S. Communications Decency Act, a provisions which grants immunity to all Internet intermediaries for any (allegedly) defamatory content where were not involved in its creation or development (Crookes, paras. 28, 103). The premise underlying s. 230 is that online intermediaries should not be held responsible for the content of others:

The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. In specific statutory findings, Congress recognized the Internet and interactive computer services as offering “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity…None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. (Zeran v. America Online Inc., 129 f. 3d 327 (4th Circ., 1997)

While Canadian common law does not currently reflect CDA s. 230, the Court’s willingness to adapt common law third party liability in order to prevent excessive chill of expression may bode well for those concerned with the broader question of Intermediary liability and, more generally, for those concerned with online speech as the Court subjects the “one writer/any act/one reader paradigm” to “further scrutiny” in the future.