Last Tuesday, the British Columbia Court of Appeal affirmed an important precedent-setting decision of the British Columbia Supreme Court regarding online defamation in Crookes v. Newton., . In the decision, Justice Saunders and Bauman found against the plaintiff Wayne Crookes who argued that the defendant was liable for linking to defamatory material online. Justice Prowse expressed a dissenting opinion. One can find more information concerning the decision of the Supreme Court of British Columbia in the article “”.

In the decision of the Supreme Court, Justice Kelleher dismissed Mr. Crookes’ action on the basis that the hyperlinks did not constitute ‘republication’ by comparing the hyperlinks to a footnote where the reader has no actual knowledge of the defamatory material. At the Court of Appeal, the judges addressed three points in their decision: whether or not there is a basis for finding a presumption of publication of the hyperlinked articles, whether or not hyperlinking is a form of publication, and whether or not one can infer publication to at least one party.

All the judges agreed that there was no presumption of publication. However on the second point the dissenting judge held that the hyperlinks (when viewed in the context of�� the Newton article as a whole) did not operate as a mere footnote. She found this because the article deals with free speech and defamation, and the reference to lawsuits involving Mr. Crookes would have served as “words of encouragement” to look further. Also on the third point the dissenting judge held that one can infer publication to at least one party since the article on Mr. Newton’s p2pnet site had been viewed 1,788 times despite Mr. Crookes not possessing evidence that a third party had actually accessed the hyperlink to the impugned articles.

The opinion of the dissenting judge is worthy of more examination, in that she found that the context of the hyperlinks in Mr. Newton’s article constituted an invitation to look further while the majority judgement held that the same context would “alert the reader to the potential of untrue content”. What a hyperlink implies – an invitation to investigate a defamation suit further or not, or whether or not the information it points to should be taken as the truth – depends on the context and also on the particular label used for the hyperlink. In most instances, like that of Wikipedia, a hyperlink with a label of a proper name like Wayne Crookes would imply that one would click the link for more true information about this person. The question is this: given the context of Mr. Newton’s website – free speech and defamation suits on the internet – what is implied by the label of the hyperlink?

The other point raised by the dissenting judge here is whether publication can be inferred. The question needed to be answered here is whether anyone clicked on the link and viewed the page in the relevant jurisdiction of British Columbia. Mr. Newton’s article had 1,788 hits, but there were no further statistics. Many websites do have further statistics: not only will they count the number of hits for each page, but they will also list which countries contributed to what percentage of the hits. They will also track the referrers – that is, which other websites are linking to their pages. If the allegedly defaming websites tracked their referrers, they could determine how many people followed Mr. Newton’s hyperlink.�� Additionally, if Mr. Newton tracked how many people from Canada had viewed his page, these two pieces of information together would give a good idea of the odds that someone from British Columbia had viewed the page and then followed the hyperlink.

In paragraph 84 the majority states that the particular circumstances of an article,�� such as its context, may result in another judgement as to whether there will be liability for hyperlinks. Nevertheless, freedom of speech will continue to remain on the Internet, at least until an article is found where its context or the label of its hyperlinks do demonstrate an invitation to view the impugned site or an adoption of its contents (or��the site's��traffic can be deduced).

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Part of BlockShopper’s business is reporting publicly available details regarding recent personal real estate transactions. Their highlights personal transactions of local professionals and executives. These reports include individual buyers' or sellers' names, the cost of the transaction and other housing details. The reports also include some brief biographical information on the individual, their photo if available and external links to sites affiliated with that person, for example to their profile on their employer’s website.

The dispute with Jones Day arose after Blockshopper reported on the personal real estate purchases of a couple of lawyers from Jones Day. As is typically the case, the reports included a photo of the individuals from their profile on Jones Day’s site and an embedded link in the lawyers’ names to their profiles on Jones Day’s site.

The dispute gained wide attention as the practice of embedding links to external websites in related words is part of the fundamental design of the Internet and is ubiquitous online. ��

The was reached by the parties following the of BlockShopper’s motion to dismiss Jones Day’s . The judge allowed Jones Day’s complaint to move forward on all claims except those directed at the individual officers of BlockShopper. As noted, the settlement simply forces BlockShopper to link to Jones Day in the prescribed form rather than embed the link in the individual’s name. That is, they must state that the individual is employed by Jones Day and that additional information can be found at [the url of the profile on Jones Day’s site], with only the full url being linked. BlockShopper must also no longer include photos from Jones Day’s employee profiles.

A group of online rights organizations, , , , and , sought to file an amicus brief with the court in light of the significance of the detrimental impact that a decision in favour of Jones Day would have on the Internet. However, their motion was denied.

dispute come out in favour of BlockShopper’s position on this issue and cast Jones Day as a big bully. Given that a final decision supporting Jones Day’s argument would be incompatible with the reality of how the Internet works, that associating this with trademark infringement is quite a stretch in the first place, and given the difference in size and legal sophistication of the parties, this may be a fair position.

However, I find it hard to place too much blame on Jones Day for trying to go after BlockShopper in some way even though I disagree with their method. Browse through one of BlockShopper’s and tell me it doesn’t creep you out, at least a little bit? Personally, I fail to see how pairing these personal details of random private citizens with their home purchases is anything more than a disturbing invasion of privacy, let alone ‘news’. While home resale prices are very useful to help determine market value, how does associating that information with details about individual people involved become ‘news’? The fact that all the data is separately publicly available and that it’s technically a snap, and perhaps legal, to aggregate it together doesn’t necessarily justify doing so. If these details about you and your recent home purchase were ‘reported’ this way, wouldn’t you want to flex your muscle against them as well? Perhaps it’s time to take a closer look at the privacy protections around the data being used.

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According to American Airlines’ (courtesy of Santa Clara University law professor Eric Goldman's Technology & Marketing Law blog), the Google search engine "[helps] third parties ... mislead consumers and misappropriate the American Airlines Marks by using them as 'keyword' triggers for paid advertisements". Third parties may buy ad space related to Google searches containing the words "American Airlines" or other trademarked terms. Their ads appear as "sponsored links", immediately above or alongside Google's "natural" search results. The effect of these camouflaged ads, according to American, is to divert some would-be American Airlines customers to competitors' sites, thereby enabling "certain companies to free ride on American Airlines' brands through use of Google's technology."��

American’s claims included direct and contributory trademark infringement, false advertising (since the term “sponsored link” falsely suggests actual permission or licence on the part of the complainant), unfair competition and tortious interference with contract (since Google knew or ought to have known better than to sell American's trademark keywords to its competitors). Google’s position was that selling keywords to competitors was no different than putting up competing billboards side-by-side, or printing a Ford ad opposite a story about Chevrolet vehicles.

Unfortunately for IP watchers, the dispute settled out of court for an undisclosed amount, with each party paying its own costs, less than a year later. As , Google had been the target of similar infringement claims in the past and had settled them in turn; those companies, however, had neither the resources nor the brand recognition of American Airlines, so all eyes were on this case to resolve the issue definitively.��

Indeed, while Google’s keyword sales may not seem an egregious infringement to some -- likened the lawsuit to “[complaining] that your local grocery store is selling both Coke and Pepsi even though it ran a Pepsi ad in the local paper” -- every company with a vulnerable trademark and an online presence has an interest in putting Google in its place. A more accurate analogy than those proposed by Google’s defenders would have the grocery store placing Coke directly in front of Pepsi on the shelf.

Try searching Google for “Air Canada”: the first result is just the kind of “sponsored link” in dispute here. The link, for a third-party airline ticket agent, is subtly highlighted to distinguish it from the “natural” search results. The Air Canada site follows immediately thereafter. Would most novice or casual Google users be able to distinguish between the paid advertisement and the natural result? How many would pass over the highlighted result in favour of the plain text beneath? Does trademark infringement occur after this moment of choice, or immediately upon viewing the results? For the moment, Google and the courts don’t have to consider the answers to such questions.

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