Thursday, July 27, 2006

Libel chill in the Canadian blogsphere?

This press release from a Toronto law firm crossed my virtual desk this morning, and as a blogger it certainly made me pause. It certainly has me rethinking the wisdom of continuing to allow unmoderated comments.

For those of you in the T-Dot, I'd also like to draw your attention to these two events. I'm going to try to attend the first. (UPDATE: Scratch that, I can't, same day as the Progressive Bloggers BBQ. Too bad.)


*To raise awareness, Pilling and Newton will be participating in a public roundtable on freedom of expression in Toronto on August 5th at the Centre for Social Innovation, 215 Spadina Avenue, Suite 120, from 3-5PM.


*A benefit concert will be held at Toronto landmark, The Rivoli, at 334 Queen Street West. Doors open at 9PM. Cover is $10.


FOR IMMEDIATE RELEASE

July 26, 2006


Lawsuits threaten to chill online freedom of expression


TORONTO, ONTARIO and LAKE COWICHAN, BRITISH COLUMBIA - In May, one of the Internet's most notorious companies, and one of its most controversial personalities, sued a blogger from this tiny community on Vancouver Island.


Sharman Networks, the Australia-based owner of the KaZaA file-sharing application, and Sharman CEO Nikki Hemming, launched a suit against Canadian Jon Newton, alleging that an article he posted to his Web site p2pnet.net, and readers' comments in response to it, were libelous. The plaintiffs also demanded the identity of the anonymous posters.


Canadian defamation law does not require a plaintiff to show that she has suffered damages to sue. It also presumes that if speech appears libelous, it is until proven otherwise. The onus is on the defendant to prove that the speech is either not defamatory or that it should be allowed in the public interest.


"Canadian libel law in effect says 'Guilty until proven innocent' and if the plaintiff wins, in my view, Canadian bloggers might as well pack up and close their Net accounts," says Newton.


Newton is not alone in his feeling that Canadian defamation law is antiquated and in need of an Internet-age refit.


Michael Pilling, the Toronto-based founder of the political discussion site OpenPolitics.ca, also found himself on the receiving end of a libel suit after a contributor posted an article on his site about Green Party financier, Wayne Crookes. When Crookes claimed parts of the posting disparaged him and were untrue, Pilling edited it, only to have the reader repost the content shortly afterwards. When Crookes objected again, Pilling explained how Crookes could use the site to contribute his own point of view.


"Democracy requires open debate. The purpose of my site is to give everyone an opportunity to express their position, and hope people start listening to each other," explained Pilling. "Instead, I was served with a lawsuit."


Newton and Pilling have decided to defend their respective actions because they feel that the rights of Canadian bloggers to freedom of expression are in serious danger. They have agreed to work together to raise awareness of the issue.


"Of course freedom of expression has to be balanced against other rights, but the law is pernicious. Anyone who runs a blog, a wiki site or an online discussion forum in Canada is in jeopardy of what someone else might say,"
says Pilling. "A mere allegation of unproved libel will cost thousands to defend against, regardless of whether the speech is true, you wrote it or were even necessarily aware of it."

"The Internet enables expression as never before, and our Charter of Rights and Freedoms is supposed to guarantee freedom of expression,"
adds Newton, "Defamation laws should not be available as weapons. Our laws need to reflect a greater sensibility."

To raise awareness, Pilling and Newton will be participating in a public roundtable on freedom of expression in Toronto on August 5th at the Centre for Social Innovation, 215 Spadina Avenue, Suite 120, from 3-5PM.


A benefit concert will be held at Toronto landmark, The Rivoli, at 334 Queen Street West. Doors open at 9PM. Cover is $10.


-- 30 --


Press Contacts: Concert and Roundtable Information:

Jon Newton Neil Leyton

jon@p2pnet.net nleyton@gmail.com

Michael Pilling Tina Siegel

mlpilling@gmail.com tina.siegel@gmail.com

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5 comments:

Robert said...

Yow... thanks for bringing this to our attention!

Mark Francis said...

I know Pilling, somewhat, and know some of the people around him.

The lawsuit re: Openpolitics.ca also extends to two others. I know one of them well.

Jeff, if you want to know more, talk to me at Guelph. There's a whole lot of stuff going on right related to the Green Party backroom.

Wayne Crookes was a major lender to the Green Party of Canada in 2003-2004. There is much about him...

Mark Francis

The Rat said...

From http://www.angelfire.com/ca2/defamation/cyberlibel.html

ii.) Bulletin Boards by Analogy

In Bryne v. Deane [1937] 1 K.B. 818 (C.A.) members of a golf club placed a poster containing a defamatory poster on the club’s wall. The defendants, the proprietors of the club, were held liable since they had knowledge of the poster and the power to remove it. Their failure to do so constituted publication. The Court of Appeal held that the failure to remove the defamatory material amounted to publication where its removal was “simple and easy”. Thus, by analogy, it can be argued that postage of defamatory information within a private password protected area of a web site would not relieve participants from liability. However, as noted by Dietrich, the fact that the material was posted in a non-public place may affect the damage award available to the plaintiff.(32)


If you don't post libelous content you won't get sued. If you remove libelous comments when requested you won't get sued. If you think offering someone space to rebut a libelous comment is good enough, well, I guess you'll be going to court. It's that simple. Any whining about internet freedom, or freedom of speech, is just whining.

I think you should already know that, Jeff, as a writer.

A BCer in Toronto said...

Rat, obviously as a journalist I do have some understanding of libel law. However, my brief education on the topic (half a credit at Cartoon U) was just what I needed to know as a print journalist.

The Internet is a different ball of wax, and one where, while I'm not a lawyer, I think the law is not yet fully formed. Particularly around blogging, ie., is blogspot the publisher or am I, do I publish a commentor's comments or do they, or does blogspot?

Does your 1937 golf club case have some relevance to the blogsphere? Who knows, but I certaintly see the paralells you're drawing, and I think there's a case to be made there.

For what it's worth (less than two cents I'd imagine)I don't think you're far off base. I'm careful of what I write, steering clear of any potentially libelous statements, fair comment or not. I also keep an eye on the comments. I have deleted one comment I felt was inappropriate and potentially libelous, relating to well known allegaions of pedophilia and a politician.

Back to this posting and press release though, my concern is one of libel chill.

Firstly, the potential damages that could be awarded in an Internet libel case, given the possible worldwide audience, I think is vastly higher than commonly awarded in newspaper cases based on circulation.

Secondly, as a journalist I work for a publication with libel insurance and a laywer. There are resources to fall back on. As a blogger, I'm on my own, no support system to even fight back against a frivious complaint. Or even determine its viracity.

Thirdly, knowing bloggers lack such a support system and resources, we're much easier targets. Slap a lawsuit or fire a warning letter to a media company, if its crap they'll fight it. Most bloggers can't, so at the sight of a scary legal letter they'll fold.

I'm sure you know what libel chill is, and that's why I'm concerned. And that's why freedom of speech on the Internet is important. Yes, libel is bad, and libel should be dealt with. My concern is corporations and politicians using frivulous threats of libel suits to stifle criticism and fair comment because they know we're easy targets.

As for the green party case mentioned in the release I don't know the background or details of that case, but Mark I look forward to getting the inside story at the bbq.

Nematode said...

He has all kinds of lawsuits!

See http://uncrooked.pbwiki.com/ [pbwiki.com]

See

http://section15.blogspot.com/2007/04/i-am-being-s ued-by-wayne-crookes.html

He is soooing this little worm for writing this:

http://greencompostheap.blogspot.com/2006/08/blow-it-out-your-tailpipe.html

and yet it is all true!