21st Century Laws: Post whatever links you like, but beware retweets

TWO lessons about speed and forethought in the digital age have emerged from Canada this week.

The first involves a Supreme Court of Canada case and a clash between freedom of expression and defamation of an individual.

And the second means a foreign dignitary has been pulled out of Canada for using her freedom to tweet, to retweet an offence link she hadn't bothered to examine first.

First, the court case news coverage here and the full decision here

The basics were that a "politician" and businessman had sued a website with writings about issues including freedom of speech, with links to an "open democracy" website which the man alleged defamed him. He argued that by including two hyperlinks, that this constituted publication of the defamatory material.

At the original trial, the judge ruled that hyperlinks were essentially footnotes, and since there was no repetition of the content, there was no publication, dismissing the case. There was a dissenting view on that point from the Court of Appeal in British Columbia and the case made its way to the Supreme Court.

On Wednesday, the majority of the judges wrote: "Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content.
The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers."

And: "The Internet cannot, in short, provide access to information without hyperlinks. 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."

But the chief justice and a second judge also stated that there had to be a balance between freedom of expression and protecting the individual. They wrote that excluding consideration of the law of defamation would mean "individuals who suffer harm to their reputations are left with no recourse against those who perpetuate defamatory information".

In the end though, the judges said that use of the hyperlink satisfied the first requirement of publication, but that there needed to be proof a third party had actually read the allegedly defamatory material. The appeal was dismissed unanimously by the Supreme Court.

Also on Wednesday, in our second lesson, a Palestinian envoy to Canada has said she is heading home after she retweeted a link to a video considered by the Canadian government to be offensive to Jews.

The CTV news organisation said Linda Sobeh Ali, the charge d'affaires of the Palestinian delegation, regretted her actions and had tweeted it from her Blackberry which was unable to play the video cited. Only later did she see the video and her government was calling her back to avoid offending Canada.

So, what do we draw from these twinned lessons?

Freedom of expression must always remain one of the most important, if not THE most important freedom in a free and democratic world. It relies, in theory, on the discerning public to determine what is true, false, fair comment or defamatory. The definitions of libel or defamation in various countries leave them open to interpretation by courts, sometimes allowing an almost free-for-all of free speech, and sometimes trampling on fair criticism of dictators and anti-democratic governments.

As a reporter, I am a firm advocate of freedom of expression as our profession's first principle. But as a reporter working in a public world, I also have responsibilities and am very aware the words have sometimes significant power for individuals or communities.

Television news stations are aware of the power of images certainly.

They regularly warn us that "the following report contains flash photography". The TV network might not be responsible for causing the flash photography but that doesn't abdicate their responsibility for alerting viewers to it, lest it cause problems, particularly those with epilepsy.

Maybe it's a no brainer that you should not be held responsible for what's on someone else's website, especially because of the effect it could have on free expression.

But that's the crux of the argument, that you can essentially be wilfully blind, blissfully ignorant, of what's on someone's website, no matter what the content is.

Advertising is often out of the control of the editorial of a website.

But links contained within an article, for example, have presumably been read before you put them in - otherwise why would you quote them? So you know exactly what you link to directly. You might not know what else is on this external site, but you're not 100 percent ignorant.

So is a disclaimer enough? In the Palestinian case, could you simply put a statement on your Twitter account that, "I'm not responsible for what I retweet". It's a very healthy abdication of personal responsibility, but the hyper-digital age allows that. It allows you to incessantly shout "me me me" but, "oh yeah, I've no idea what I'm saying".

Technology has given us all the control but none of the thought capacity to use it sensibly.

Just because you can post links you don't legally have to check for bad material doesn't mean you shouldn't. Are you absolved from having any moral responsibility for what you connect to your website or Twitter account simply because you're in a rush to tweet/post, or because a court says so?

Obviously news sites need to cite where any and all information comes from, a lesson learned the hard way by a Politico.com reporter last week.

And news organisations cannot be responsible for all the content on those other sites we need to acknowledge.
But technology allows pop up messages to warn of potentially offensive content on exterior sites if we specifically know what the content includes. That requires us to take time, not simply react (the darling of the 24/7 news cycle).
There is an argument from some quarters, such as by Jeff Jarvis , that you can simply tweet and if wrong correct it later. The story is a process, not a product, he argues.

But if inaccuracies are not acceptable for the best newspapers - even as a "first rough draft of history" - then why are they for Twitter?

Maybe individuals can say what they like, but news organisations and governments, if they are ever to regain a measure of trust (and they must someday), must behave with a professionalism to justify their right to freely express themselves beyond the legal definition.

And that means we must always keep questioning how we use technology and free expression together, no matter what a court decides.

Published Date: Oct 23, 2011 07:50 am | Updated Date: Nov 02, 2011 01:50 pm

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