Supreme Court of Canada Rules on Hyperlinks and Defamation

If you’ve ever blogged or created content and inserted a hyperlink to information on the Web, a recent Supreme Court of Canada (SCC) case should help you sleep better, knowing it’s unlikely you’ll be liable for defamation. In Crookes v. Newton the SCC considered whether a hyperlink to allegedly defamatory material amounted to “publishing” the defamatory material.

In Canada, for someone to succeed in bringing a defamation action they must prove that the defamatory words were “published”. To be published the words must be communicated to at least one person other than the person claiming defamation.

The SCC concluded that hyperlinking is not, in and of itself, publication of the content to which the link refers.

The Facts of the Case
Crookes brought a series of law suits against people he claimed were responsible for allegedly defamatory articles published on various websites. Newton, who owns and operates a website containing commentary on various issues, posted an article on his web site that had hyperlinks to other web sites, which in turn contained information about Crookes.

Crookes sued Newton on the basis that two hyperlinks Newton inserted linked to defamatory material and that by using those hyperlinks, Newton was publishing the defamatory information. One of the hyperlink was a “shallow” hyperlink, which means it simply took the reader to web page where the articles were posted. The other was a “deep” hyperlink, which took readers directly to a specific article. In essence, Crookes argued that a person who includes a hyperlink on a webpage publishes any defamatory remarks found on the linked page because the person inserting the link has done something that has the effect of transferring the defamatory information to anyone who clicks on the link.

The Majority’s Decision
Justice Abella, writing for the six-justice majority, concluded that hyperlinks are like references and a reference to other content is fundamentally different from other acts involved in publication. According to Abella, it is the actual creator or poster of the defamatory words in the linked material who is publishing the libel when a person follows a hyperlink to that content

Abella concluded, “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, would that content be considered to be “published” by the hyperlinker.” [Paragraph 42 of the judgement]

The Concurring Opinions
In a concurring opinion, Justices McLachlin and Fish were not willing to absolve all hyperlinkers from possible liability for defamation. Instead, McLachlin and Fish concluded that there could be some cases where the combined text and the hyperlink may amount to publication of defamatory material contained in the hyperlinked text. “If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content.” [Paragraph 48]

In a lengthy separate opinion, Justice Deschamps disagreed with the approach taken by the other justices. Instead, Deschamps favoured a “more nuanced approach” under which a reference to defamatory content could satisfy the first component of publication if it makes defamatory information readily available to a third party, if the act was deliberate. [Paragraphs 106 and 107] And, if the first component is met, the court should then turn to the second component, which is whether a third party received and understood the defamatory information. Deschamps then set out some of the factors a court could consider in determining whether to infer that a third party clicked on the hyperlink and read and understood the linked information. [Paragraph 110] Applying her approach to the facts of the case, however, Deschamps concluded that Crookes did not establish facts supporting the second component and so she too found in favour of Newton.

Conclusion: Hyperlinks are Crucial to the Flow of Information Over the Web
The SCC’s decision is obviously comforting to bloggers and others who use hyperlinks. It should also be welcome by all who use the Internet as it reflects the reality that hyperlinks are crucial to the flow of information. As Justice Abella put it, “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.” [Paragraph 36]

October 13, 2011 is International Plain Language Day!

Plain Language in a Multi-Cultural Context

October 13, 2011 is International Plain Language Day. The date coincides with the anniversary of U.S. President Obama’s signing of the Plain Language Act. That law requires U.S. government agencies to use plain language in documents relating to federal benefits and services, to filing taxes, and to complying with federal requirements. A U.S. law may not seem like something we should celebrate here in Canada, but it is.

The law signals wide-spread acceptance of the belief that people have a right to understand information that has consequences to their lives. Such laws recognize that to lead healthy, productive lives, people must be able to make sense of information about money, health, and safety, not to mention rules and regulations they must abide by as members of society.

Our right to all sorts of information from governments and businesses is well recognized. For example, because of disclosure and transparency requirements we are entitled to information about privacy policies, credit card rates and terms, possible adverse reactions from medications, etc. But such information is often incomprehensible because of jargon and legalese. When that is the case, though information may be available, people are still unable to make informed decisions, which is the rationale for providing such information.

Regardless of whether plain language is mandated, businesses and organizations should be encouraged to adopt it because doing so makes business sense. There’s evidence that companies and organizations that embrace plain language spend less time answering questions and explaining things. They also benefit from being seen as being customer-centred. Government agencies that provide information in plain language often report having to spend less on enforcement and notice better overall compliance.

Plain language writing is especially critical for citizens whose mother tongue is different from the language the information is in and for those who must rely on translations. Because plain language writing limits the use of jargon and legalese, it is easier to translate and there is less chance of mistranslation. Obviously, in a bi-lingual country, not to mention in a city like Toronto, where banks, social service agencies, and other businesses often provide information in multiple languages, anything that makes translation easier should be welcomed.

The basic principles of plain language are straightforward: use short sentences and paragraphs; use common words rather than jargon; use terms consistently; organize information in a way that makes sense to readers; and use descriptive headings so that readers can find relevant information easily. Plain language writing is not rocket science, it simply requires care and commitment to helping readers understand information.

Some give the excuse that certain information, especially medical, financial, and legal information, is complicated and cannot be simplified. Such claims are based on the incorrect underlying assumption that plain language is “dumbing down” information.

Plain language is not about oversimplifying or about simply shortening things. It is about providing information in a way that people who are not specialists in the particular area can understand. Indeed, occasionally something written in plain language ends up a bit longer than the jargon-filled version, but that is usually only the case if additional background information or definitions are needed to make it understandable. The bottom line is people would rather read a longer document once and understand it than have to re-read a shorter document or get additional information or clarification.

Many people believe, as I do, that when someone uses jargon or legalese they are either too lazy to bother making it understandable and they do not care about the consumer of the information; they are not knowledgeable enough about the topic to make it understandable; or they have something to hide. As a result, I do all I can to avoid doing business with people who do not use plain language.

Individuals, society and, ultimately, democracy suffer when information is not written in language that is plain and understandable. International Plain Language Day is about putting plain language on the agenda in legislatures and boardrooms. The time has come for Canadians to embrace plain language and demand it of organizations in both the public and private sector.

Today is International Literacy Day!

Today (September 8th) is International Literacy Day — this is the 45th year it is being celebrated. UNESCO came up with the idea back in the 1960s to draw attention to the fact that many people in the world to not have the gift of education and literacy.

Think of all the things you do every day that required you to read — everything from reading the morning paper, to reading road signs on your way to work, to reading e-mails, to ordering from a menu, to reading your child a bedtime story — and lots more in between these activities.

So today — and every day — celebrate your good fortune at being able to read, and try to find ways of sharing the gift of literacy.

Obama signs Plain Writing Act of 2010

The Plain Writing Act of 2010 (the Act) was signed by President Barack Obama on October 13, 2010.

The purpose of the Act is

“to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use.”

The Act applies to “covered documents”, which are defined as including:
• documents necessary for getting any Federal benefit or service, or for filing taxes,
• any document that provides information about any benefit or service provided by the Federal government, and
• any document that explains to the public how to comply with a requirement the Federal government administers or enforces.

The Act applies to letters, publications, forms, notices, and instructions, but does not apply to regulations. (Ironically, because of the way the Act is structured (in particular, subsection 3(2)) it’s a bit tricky to figure out that there’s an exception for regulations. The exception could have been expressed in a clearer – plainer – way, but never mind.)

So what is plain writing? The Act basically defines it as writing that’s clear, concise, well-organized and appropriate to the intended audience (something I usually refer to as “reader-focused writing”).

Federal agencies have nine months to prepare and implement a number of plain writing requirements, including training their employees in plain writing and creating a plain writing section of their website. By October 13, 2011 (one year from the date the Act was signed by the President) Federal agencies must use plain writing on all “covered documents” they issue or substantially revise.

As a plain language consultant and advocate, I’m thrilled about the Act because it is recognition of both the importance of plain language, and the need for it. As a citizen, I cheer the U.S. government’s efforts at making their communications understandable. Though the Act only applies to documents created by Federal agencies, I have to believe that companies and organizations in the private sector will see the benefit and will hop on the bandwagon.

Are you winning the war?

When the topic of PowerPoint comes up in my line of work, it seems most clients either love it or hate it. Personally, I’m neutral about it. But, deep down, I sometimes wonder whether my neutrality is really just a cover for a deep-seated insecurity about it. Though I probably shouldn’t admit this in print, I will: Over the years I’ve sat through many PowerPoint presentations that have challenged my comprehension skills.

With this in mind, this heading in today’s Toronto Star caught my eye: Is PowerPoint making us stupid?

Naturally, I read the article with some interest. Unfortunately, it didn’t cover any new ground, though it did present the most common arguments raised about the evils of PowerPoint: it stifles discussion, critical thinking, and thoughtful decision-making. It even mentioned my favourite argument against PowerPoint being used for everything: the fact that some thoughts simply do not lend themselves to being crafted into a bullet list. Hear, hear, I thought!

But perhaps the best thing about the article is a picture of a PowerPoint slide and a quote about the slide allegedly attributable to U.S. General Stanley McChrystal, leader of the U.S. and NATO forces in Afghanistan.

The slide, shown to McChrystal last summer, contains a diagram the article describes as looking like a bowl of spaghetti but which was drawn to portray the complexity of the military Coalition’s strategy in Afghanistan. According to the article, when McChrystal saw the diagram his comment was: “When we understand the slide, we’ll have won the war.” Well, well — I guess I’m not the only one whose comprehension skills are sometimes challenged during PowerPoint presentations!

So, with this in mind, my wish for all whose life includes PowerPoint is simple:

May you never create a PowerPoint presentation that prompts a comment like that and may you never have to try to making sense of such a PowerPoint slide!

Information Design as a Risk Management Tool

Good Information Design (ID) is more than just making the presentation of information attractive. ID is concerned with presenting information in a way that’s useful for the intended audience. Indeed, ID can even aid in risk management. I came across a vivid example of this in Captain Chelsey “Sully” Sullenberger’s recently-released book “Highest Duty”. (Captain Sullenberger was the US Airways pilot who safely landed Flight 1549 in the Hudson River in January 2009.)

After losing thrust on both engines, Sully instructed First Officer Jeff Skiles to check the Quick Reference Handbook (QRH) for what to do in such a situation. Here’s Sully’s description of those moments (from page 262 of the book):

“Jeff grabbed the Quick Reference Handbook to find the most appropriate procedure for our emergency. The QRH is more than an inch thick, in previous editions, it had helpful numbered tabs sticking out of the edge of it. That made it easier for us to find the exact page we needed. You could hold it in your left hand and use it like an address book, grazing over the numbered tabs with your right hand before turning to the tab for, say Procedure number 27.

“In recent years, however, in a cost-cutting move, US Airways had begun printing these booklets without the numbered tabs on the edge of the pages. Instead, the number of each procedure was printed on the page itself, requiring pilots to open the pages and thumb through them to get to the right page.

“On Flight 1549, as Jeff turned quickly through the pages of his QRH without tabs, it likely took him a few extra seconds to find the page he needed with the proper procedure. I told this to the National Transportation Safety Board in my testimony given in the days after the accident.”

I don’t think you’ll ever find a better example of how Information Design – those little tabs on the pages – can, in fact, be useful from a risk management perspective. The purpose for having the QRH in the cockpit was risk management and those involved in the Information Design decisions that went into the earlier versions clearly understood that a design that included tabs would be useful in saving precious time during an emergency.

Rule #29 — Words Matter

Awhile back, in her weekly newsletter, Terri Lonier (founder of Working Solo), recommended Alan M. Webber’s new book: Rules of Thumb: 52 Truths for Winning at Business without Losing Your Self.

Intrigued, I added it to my reading list and earlier this week I finally started reading it. The book has 52 short chapters, each of which features a rule of thumb. After stating the rule, Webber tells a short story that illustrates it. Then, under the heading of “So What?”, he explains how the rule applies in contexts beyond the introductory story.

This afternoon I came across Rule 29: Words Count. Given what I do for a living, I was quite please to see that rule! (Mind you, it would be higher than #29 in my book, but never mind…)

Anyway, on page 142, under the “So What?” heading for Rule 29, Webber offers two memorable quotes to illustrate the rule that I just have to share. Here’s what Webber wrote:

“1. “The difference between the right word and the almost-right word is the difference between lightning and the lightning bug.” Mark Twain said that.

2. “If you think learning your vocabulary words doesn’t make a difference, try going into a store and asking for toilet paper when you only know the word for sandpaper.” Roy Battenberg, my high school German teacher said that.”

As I said, Rule #29 struck a particular chord with me – but it’s just one of 52 insightful rules Webber offers up. Check it out and let me know what you think…

National Punctuation Day

Are you up for a challenge? If so, here’s what I propose: today — in honour of National Punctuation Day — use as many different punctuation marks as you can! It’s not as hard as is sounds … All you have to do is be creative; take a break from your normal, safe, dull punctuation. Then, if anyone asks why your writing is so much livelier today, tell just them: “Because I was brave enough to take up Ingrid’s challenge”.

[If you’re inspired by this (and I hope you are) — feel free to share your inspiration with the rest of us by posting a comment.]


Ghostwriting has been in the news lately –- but not because of some celebrity autobiography or other fluff piece. A New York Times article published August 5, 2009 reported about recently-released court documents that show that Wyeth Pharmaceutical hired a medical communications firm to draft articles that were published in medical journals between 1998 and 2005 emphasizing the benefits of hormone replacement therapy.

According to the Times’ article, the communications firm, which was paid by Wyeth, outlined the articles, drafted them, and then solicited top physicians to sign on as author of the articles, even though many of the physicians contributed little or not writing. (An August 22, 2009 article in the Toronto Star described a journal article published under the name of a Canadian researcher that was among the revealed court documents.)

As a communications consultant, I worry that such unsavory practices reflect poorly on my profession. On occasion, I am hired to write on behalf of someone else. (I suspect most good communications consultants are so hired from time-to-time.) When I am hired to write something that will go out under another individual’s name, my job is to put the named author’s expertise into words and my writing is always under the named author’s direction and subject to their close review. The idea of writing something and then going in search of a name to have it published under is not –- to my mind -– what ghostwriting is about.

U.K.’s Local Goverment Association bans jargon

BBC News has reported that the Local Government Association (an association of 466 local government authorities throughout the UK) is encouraging its staff to avoid the use of jargon. According to the BBC, local and central governments are often criticized for their use of language.

Margaret Eaton, chair of the Local Government Association, explained its reasoning: “During the recession, it is vital that we explain to people in plain English how to get access to the 800 different services that total government provides with taxpayers’ money. Councils have a duty, not only to provide value for money to local people, but also to tell people what they get for the tax the pay. People would be furious if they have no idea of what services their cash is paying for and how they should get to use them”.


To see the complete list of the 200 words the Local Government Association has banned, click here.