Canadian Appeals Court Says Linking To A Site Is Not Defamation

from the phew dept

Way back in 2007, we wrote about a Canadian business man/politician, Wayne Crookes, who was suing a bunch of websites, including Google, Yahoo, MySpace and Wikipedia, because he was upset about what some people had posted about him on those sites, claiming it was defamatory. We found it odd that he was suing these companies, rather than the individuals who supposedly posted defamatory material (oddly, many of the stories that he claimed were defamatory were about him supposedly filing defamation lawsuits!). In some cases, it reached ridiculous levels, such as the fact that the same guy also sued Jon Newton, the operator of P2Pnet.net for merely linking to text that Crookes considered defamatory.

It was troubling enough to sue a company that was hosting a conversation where someone may have said something defamatory, but to take it to another level, where someone merely linking to the actual text as a part of reporting on it was also accused of defamation could have a serious chilling effect on free speech and open communications in Canada. Luckily, last year, a Canadian court found that merely linking to potentially defamatory content is not defamatory. Apparently that ruling was appealed... and the appeals court has agreed that linking to defamatory content is not, itself, defamatory. This is a big win for free expression in Canada. The case could still be appealed, and some are noting that the appeals court ruling still had some problems. There was a dissenting judge who seemed to think that because people may have clicked on the link, just putting up a link was the equivalent of publishing the content on the other side of the link (yikes!). That last link also discusses some other serious problems with libel law in Canada (similar in some ways to the problems in the UK), which is in desperate need of a modern update.


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  1.  
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    Marcus Carab (profile), Sep 18th, 2009 @ 6:16pm

    As a Canadian, that article made me shiver...

     

    reply to this | link to this | view in thread ]

  2.  
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    Marcus Carab (profile), Sep 18th, 2009 @ 6:48pm

    Re:

    (the Section15 article about our libel law, that is)

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Palmyra (profile), Sep 20th, 2009 @ 8:06am

    Re: As a Canadian, that article made me shiver

    Don't you guys do that about 10 months of the year anyway? ;)

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    TW Burger (profile), Sep 20th, 2009 @ 11:39am

    Re: Re: As a Canadian, that article made me shiver

    It's only 9 months and 27 days.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Captain Canuck (profile), Sep 20th, 2009 @ 12:55pm

    Re: Re: As a Canadian, that article made me shiver

    If he was in some parts of the States, he would be shivering all year round.

     

    reply to this | link to this | view in thread ]

  6.  

    the full decision and implications of it for the Internet

    http://www.p2pnet.net/story/17398 has the entire decision and commentary about it. One of the most interesting and insightful comments is by one of the defendants who says there are several more legal precedents that need to be set to prevent BC from becoming a black hole of process abuses destroying human rights worldwide.

    -------------

    Craig Hubley says:
    October 29th, 2008 at 2:01 am

    This is only the first of five steps to end the threat posed by lawsuits like this to freedom of political expression.

    1. Allow those who have expressed no particular opinion to link freely to the debate without fear of being themselves sued. Done!

    Without this, as you point out, any discussion suffers chilling effects.

    2. Allow those who host open political debate on contentious issues to mediate it without being sued simply for mediating or for not pre-emptively vetting all comment before it is displayed. That should be addressed in rulings in the openpolitics.ca case itself.

    Without this, no one will dare host anyone debating political decisions and figures prominent in parties and movements online. The rich discourse we have online will dry up. Or worse, selectively dry up with only movements supported by the rich able to defend.

    3. Adopt a US-style “Sullivan” standard for public speech on contentious public issues. That is, public figures who voluntarily entered the public realm to work in public roles in political parties directly to influence public decisions, or accept roles in government itself, may be scrutinized and criticized almost without limit, because failing to allow this would have grave consequences (qualified privelege). In particular, ensure that people who doubt someone’s integrity or sincerity can publicly voice those doubts without fear that they or their associates will be targetted. This should be addressed in rulings in Stephen Harper’s SLAPP suit against the Liberal Party.

    Without this, mediators will be required to be unduly interfere in the public issue debate and will invariably censor those who take a strongly critical view. Remember, political parties advocate changes to law that other parties do not. So from the perspective of each of those parties, the others are criminals, that is, they are doing things that “should be illegal”. This is the nature of politics, that everyone considers their opponents crooked and unethical almost by default. And if they didn’t, they’d get away with more…!

    4. Ensure not only that liability does not accrue, but that the filing of suits itself is discouraged when debate is on public interest matters, i.e. SLAPP suits are discouraged by specific provisions prejudicial against the original plaintiff when countersued, or giving findings of fact deliberately useful in a human rights proceeding against the original plaintiff by any party whose speech is inhibited.

    Without this, anyone seeking to silence specific critics who happen to be poorer than them can intimidate them into silence simply by filing suits that the plaintiff can afford to launch but the defendant cannot afford to defend. This becomes very unequal very quickly.

    5. Ensure anonymity is protected in public issue debate to the same extent as it is with the secret ballot. That is, that civil discovery simply cannot be used to identify persons whose comment was confined to the public or political realm. Disclosure alone does harm.

    Without this, civil discovery can be used to identify opponents by name and often also to identify their correspondents and allies. In the case of dissidents criticizing human rights violating regimes from safe haven countries this is devastating as it can result in the imprisonment, torture or death of innocent parties including themselves. This is especially dangerous if status to file libel suits is easily granted or lawyers acting for the plaintiff are careless or bribed to act against the court’s intent and release that information.

    It’s critical for freedom of political speech that Wayne Crookes loses every single case with costs. See http://cippic.ca for a good list of the issues, especially
    http://www.cippic.ca/defamation-and-slapps/
    http://www.cippic.ca/online-anonymity-and-j ohn-doe-lawsuits/


    ----------------

    The issues in remaining cases seem to be mostly about the fact that the expression, as in Newton's case, was about politics and public affairs, and that Canadian law provides insufficient protection for this and insufficient privacy for commentators engaging in it, who can be "discovered" even without showing that any of the material is libellous, and thereafter harassed and potentially harmed by their political opponents. Obviously this is more of an issue for Iranians or Chinese or Burmese or Tibetans commenting on their home countries from Canada or the US, but it is almost as easy for someone in any of those countries to sue from BC as it was for Wayne Crookes. Since he and his lawyer are in exactly the business of process serving and filing suits, commercial motives could be behind this entire regrettable sue-everyone strategy.

     

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  7.  

    Iceland's law protects Julian Assange from people like Wayne Crookes

    Probably those goals 1-5 do not go far enough. Something more like the Iceland law is required http://immi.is

    Julian Assange is obviously one of "those who host open political debate on contentious issues" who has been criticized for "not pre-emptively vetting all" sources before displaying them to the world. He did actually hold back quite a bit but could not personally vet 250,000+ diplomatic cables. Imagine the civil liability of *those* under the rules Wayne Crookes and his gang of lawyers now espouse.

    Crookes-style civil liability would be even more effective to ensure that "no one will dare host anyone debating political decisions and figures prominent in parties and movements" because anyone can file lawsuits.

    A "US-style “Sullivan” standard for public speech on contentious public issues" may also not be enough given recent US bully behaviors.

    Since either criminal or civil law can be used to suppress free political speech, and either process is expensive, so Iceland does have process protections similar to anti-SLAPP laws. That means "filing of suits itself is discouraged when debate is on public interest matters," as it clearly is in the case of Wikileaks. And also of Wayne Crookes since all criticism of the guy was of his role in the Green Party of Canada, not a business or personal matter.

    Assange's supporters and service providers are already being pushed away from him by open threats of criminal liability. Civil liability can be much more insidious and probably has been employed also against the Wikileaks support community.

    Assange versus Crookes: Which vision of the Internet will prevail? Will every mention of any controversial website trigger civil liability for all of the harms or torts of any content on that whole website as Crookes has demanded? Or will only the initial leaker bear criminal liability for what ever state secrets he leaked, and the rest be fair game for the press, and no lawsuits allowed anywhere ever over any political commentary?

    Again make sure to read the Iceland law http://immi.is and talk about this all over the place. It's going to take more countries to do this to ensure that no one can be sued anywhere over their political comment.

     

    reply to this | link to this | view in thread ]

  8.  

    Iceland's law protects Julian Assange from people like Wayne Crookes

    Probably those goals 1-5 do not go far enough. Something more like the Iceland law is required http://immi.is

    Julian Assange is obviously one of "those who host open political debate on contentious issues" who has been criticized for "not pre-emptively vetting all" sources before displaying them to the world. He did actually hold back quite a bit but could not per

     

    reply to this | link to this | view in thread ]

  9.  

    Iceland's law protects Julian Assange from people like Wayne Crookes

    Probably those goals 1-5 do not go far enough. Something more like the Iceland law is required http://immi.is

    Julian Assange is obviously one of "those who host open political debate on contentious issues" who has been criticized for "not pre-emptively vetting all" sources before displaying them to the world. He did actually hold back quite a bit but could not personally vet 250,000+ diplomatic cables. Imagine the civil liability of *those* under the rules Wayne Crookes and his gang of lawyers now espouse.

    Crookes-style civil liability would be even more effective to ensure that "no one will dare host anyone debating political decisions and figures prominent in parties and movements" because anyone can file lawsuits.

    A "US-style “Sullivan” standard for public speech on contentious public issues" may also not be enough given recent US bully behaviors.

    Either criminal or civil law can be used to suppress free political speech, and either process is expensive, so Iceland does have process protections similar to anti-SLAPP laws. That means "filing of suits itself is discouraged when debate is on public interest matters," as it clearly is in the case of Wikileaks. And also of Wayne Crookes since all criticism of the guy was of his role in the Green Party of Canada, not a business or personal matter.

    Assange's supporters and service providers are already being pushed away from him by open threats of criminal liability. Civil liability can be much more insidious and probably has been employed also against the Wikileaks support community.

    Assange versus Crookes: Which vision of the Internet will prevail? Will every mention of any controversial website trigger civil liability for all of the harms or torts of any content on that whole website as Crookes has demanded? Or will only the initial leaker bear criminal liability for what ever state secrets he leaked, and the rest be fair game for the press, and no lawsuits allowed anywhere ever over any political commentary?

    Again make sure to read the Iceland law http://immi.is and talk about this all over the place. It's going to take more countries to do this to ensure that no one can be sued anywhere over their political comment.

     

    reply to this | link to this | view in thread ]


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