Supreme Court of Canada ruling in Crookes v. Newton / Date: 20111019 Docket: 33412

Internet Activists are applauding the Supreme Court's decision in Crookes v. Newton (a.k.a "The Hyperlink Ruling"). Professor Michael Geist thinks Justice Abella is "exactly right" while lawyer Howard Knopf claims "the court was fully aware of what was at stake".  I beg to differ. If anything the ruling demonstrates just how impotent our Justice system is to take the reins on issues of free speech and the Internet.

Around the world journalists are being censored and imprisoned. The forces that seek to silence truth follow the internet's hyperlinks to their targets. A hyperlink is much more than what the ruling defines: it's more than a citation, more than republication and more than an argument over content ownership. A hyperlink demonstrates what a citizen has read, what they know: this is the freedom attribute that is at stake. Thus it is patently unhelpful that Justice Abella has ruled that a hyperlink is 'only' a citation, 'not' republication and 'not' litigable. Relativism and dualism canceled the efficacy of legal discourse in this instance. This ruling should have pointed to the need for legislating the meta data of hyperlinks: who tracks their click-throughs, who uses those stats against us, etc. I also expected some mention in the ruling of the dynamics of persecution that attend an individual's entree into publication in this age. There is none.

Sadly our country's highest bench doesn't seem to have the savvy required to bring defamation case law in line with the new realities of publishing. It's not like our highest Court hasn't heard from the best legal minds in this regard. The SCC has heard it all. I can only surmise that their deficits in understanding relate fundamentally to how they work.  Perhaps the court should bear in mind that any person hyperlinking to a Supreme Court ruling that disfavors a government position is a person at risk. I would ask Justice Abella if this is a hyperlink protected by law:

IN THE MATTER OF AN INTENDED ACTION

B E T W E E N 

GUY WILLIAM GIORNO

Plaintiff

-AND-.

Defendant

 

KAREN MARY KRISFALUSI

Yet I wouldn't put much faith in her answer...


UPDATE:

As at December 1st, 2011 countless law firms and lawyers have written at length about this ruling. Good places to go from here are Sonia Dawan's Potential Liability for For Hyperlinking: Crookes v. Newton and Maanit Zemel's Will the SCC's Online Defamation Decisions go 'viral'?. Both are confused speculations. For my part I'm still sure this ruling will have harmful consequences for online freedom. My view will attain merit in the future..I'm sure..

Chantal Hébert mentions the federal Lobbying Act's 5 Year Prohibition Rule on the At Issue Panel

I just reviewed last week's At Issue Panel. Chantal Hébert:

You [the Harper Government] put in place lots of checks and balances. You have the Accountability Act. You basically make it difficult for just about anyone to come to work for a politician and then not pay for it for the rest of his career. But then as the government you're entitled to just take public money outside of every guideline and every process and say: "Well this money -- we're gonna spend as we sit fit and we're not even going to tell Parliament about it."

Meanwhile Guy Giorno (who is calling for jail time for breaching the federal Lobbyist's Code of Conduct) has twice since derided Hébert on twitter:

It's one thing for Giorno to lobby hard in the public sphere for changes to the Federal Lobbying Act. Yet if he is published doing that -- alongside seasoned political journalists, competing with them as though he has no partisan interest -- you would think he would at least possess enough common sense not to pick brutish fights with same on Twitter.

Lather. Rinse.

RETWEET

Policy Directions and Canadian Political Discourse

During this past year I have noted some very disturbing trends concerning the independence and rights of free association of our elite political class. I am interested in how this affects policy discourse.

One trend concerns changes to the Federal Lobbying Act that tend to unfairly restrict the employment rights of former politicians and political staffers toward silencing their voices. Read this excellent article from Borden Ladner Gervais to learn more and recall that Rona Ambrose recently dissuaded lobbyists from even approaching her while Lobbying Commissioner Karen Shepherd's messaging preceding and during the 41st general election dissatisfied many justly seeking clarification.

Another trend relates to the Social Media Mafia and political activism. I was recently threatened with a libel suit by a highly placed conservative party operative.  This same political party is now passing the collection plate in a bid to raise funds to silence our political pundits from full expression.

Further, the highly acclaimed intellectual Allan Gregg has published some rather questionable polling in the service of The Manning Centre that seeks to frame Canada's general political discourse as conservative in nature.  This comes as Gregg steps down from the At Issue Panel where his role was to comment objectively on partisanship in politics.

Finally Alex Himelfarb recently noted the following in reference to policy discourse related to Harper's Omnibus Crime Bill, the top priority of our government further to winning a majority mandate:

And in the end, in the name of safety, we are less safe. In the name of democracy, we are less free. And in our refusal to have the debate, to move beyond our prejudices, our fears, our anger, we make Canada a meaner and smaller place.

I will explore this subject in detail on this blog. Stay tuned...

My Love Letter from Guy Giorno

I got this a few weeks ago from Fasken Martineau. No word from Guy Giorno on what he plans to do next. Swatting flies with sledgehammers...fun sport for some.

From Politics

Andrew Coyne and Friends

I've pulled this post from my Macleans for Dummies archive. It should be of interest to those following the CPC convention. Click on the links to read some enjoyable talk-back from Maclean's.


Updated: Ken Boosenkook is working for Christy Clark now! It's a crazy world...

When Andrew Coyne writes that the Conservative Party practices a 'know-nothing' strain of conservatism he really knows what he's talking about! After all he sat through this little speech by Ken Boessenkool:

We have our British Conservative Party friends here who spoke about this at length. Andrew, who's a great friend, and many other conservatives who are criticizing us right now come from the economic side of our coalition but let's look at the broader coalition and let's start talking about a couple of areas where the principals that this conservative government have put forward and defended and moved have been REVOLUTIONARY.

FOREIGN POLICY: Canada is consistently the first country in the world to defend Israel, our ally in the Middle East, our democratic ally. This is a huge thing that they've done. They've stood on principal on that and they've been consistent right through the piece.

DEFENSE: We are rebuilding our Armed Forces. We are putting billions of dollars into our Armed Forces and we are rebuilding our National Defense in a principaled, important and lasting way.

ARCTIC SOVEREIGNTY: We are defending and building national symbols which Conservatives can be identified around. The symbolism of The North, the arctic stuff that Harper is doing, we're defining our northern part of our country as a conservative national symbol. Look at our government's website. "True North Strong and Free". The National Anthem becoming more of a conservative symbol.

FEDERALISM: We have a government now... and I was at a Institute of American Family conference and someone - Mr. Ian Duncan Smith - said his think tank was not a think tank but a do tank. And I went to the mike and said it's very good to have a do tank but I think what Conservatives need is an undo tank because there's all kind of bad policy we need to undo. And on federalism this government has for almost the most part if not the main part this government has stayed out of provincial jurisdictions in the area of social policy. That's an undo. It's an important undo.

On Justice we have brought forward many bills to toughen up our criminal justice system. A very conservative set of policies. A very consistent set of policies that we have pushed forward, advanced and moved forward.

POLITICAL CORRECTNESS: We no longer...there is no longer any credibility in this country for the Kelowna Accord, for the Kyoto Accord or for court challenges programs. These were politically correct institutions that this government has systematically - in their converstation and in their policy - undone and moved forward and changed the debate.

Let me conclude with THE MOST IMPORTANT THING THIS GOVERNMENT HAS DONE in my estimation (and I'll admit a bias because I've been writing about this for many years and I have four children). This government stopped cold a national, government-run, unionized child-care system and instead re-directed billions of dollars so parents can make their own choices about their families.

THAT'S CONSERVATIVE PRINCIPALS.

And with a little gasp and an effeminate pat of his breast he fell quiet...