Chilling Effects In Action: Canadian Bloggers Worried About Legal Threats Stay Quiet

from the not-worth-getting-sued dept

A few months ago, we had the story of a guy in Canada who was suing a whole bunch of sites because commenters on those sites said things he believed were defamatory. He supposedly even went after a few sites that simply linked to the defamatory material (and then there were claims that he went after sites that simply linked to sites that linked to the supposedly defamatory content). That seems a bit absurd, for obvious reasons. However, an article in Toronto’s Globe & Mail notes that it may actually have been effective. Various bloggers have stopped writing about the guy out of a fear of getting sued as well. That, of course, is exactly what the suits were intended to do: to create some “chilling effects” against free speech. While the US laws clearly protect publishers and online services from content they didn’t write, Canada doesn’t have such protections — and the chilling effects from that gap in the law are quite clear in this case. There’s nothing wrong with using the law against those who actually are making defamatory remarks. However, suing sites that host those remarks or those who simply write about the story itself isn’t protecting against defamation. It’s going beyond that to intimidate anyone who might normally write about a perfectly legitimate legal issue.

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Comments on “Chilling Effects In Action: Canadian Bloggers Worried About Legal Threats Stay Quiet”

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Anonymous Coward says:

Re: Re:

Funny thing is they don’t think it terrorism. Terrorists in the traditional sense use violence or the threat of violence to incite change. Persons and companies that go on rampages of lawsuits (RIAA, Austailian restaraunt critics,…etc.) do it so they can incite a major change in their industry.

Now I’m not saying that RIAA = Al Queda but there similarities.

Mark Francis (user link) says:

The defamation standard in Canada is aristocratic

Add this to the problem: in Canada, defamation is considered to be any negative comment about a person which could be seen to lower a person’s reputation. Malice is not at all required. The standard for libel carries with it reverse onus: you are guilty until proven innocent. There is also such a thing in Canada as false opinion. It is actually specifically allowed in statute in British Columbia for two people to make the exact same comment of opinion, and one to be found guilty, the other not if a court determines that, under the balance of probability, an otherwise fair comment was made maliciously by one of those persons. False facts are not required to be found guilty of libel. Vague, unintended innuendo is also enough to get you in trouble.

Canadian libel laws are ancient, and are the most antiquated, backwards libel laws in the western world. There are no exceptions for satire, parody, public interest or public figures. Criticize the Prime Minister in writing, saying some thing like “His judgment is clearly poor because he’s wanting troops to stay in Afghanistan” is technically libelous. He can sue, and unless the author can back up his opinion sufficiently to claim the defense of fair comment, the author is guilty.

Anonymous authors are not protected in any way. All you have to do in Canada to get IP records is file a libel suit against the anonymous author, and the provider will be court-ordered to hand over the information. Given that reverse onus is the standard, the anonymous blogger is considered guilty and thus has no privacy.

People who sue to cause libel chill face no sanctions aside from paying _some_ of the defendant’s costs. There is no counter-suit possible in such cases, though you can go to court to try to argue that more of your costs should be awarded. For an example of both libel chill and how innocent people get stuck with costs, see here:

Canadians really don’t understand the constraints they live under because there are partial protections for journalists, and, by convention, politicians rarely sue for libel, and, in any event, they are covered by insurance for such things. But now, with so many normal communications online, cyber libel suits are growing in numbers. So far, the provinces show no signs of understanding the mess they are avoiding.

A key concern with Crookes’ suits is that he’s crossing provincial and international borders. Although he’s using British Columbia law, everyone he’s suing lives outside that province. David Weekly, of in California, a defendant of Crookes, has told me that it’s possibly far more economical for him to simply block IPs from BC.

It’s worth mentioning that Crookes is not what Americans would consider a private citizen. He has been deeply involved in the Green Party of Canada, and the criticisms he faces come from the roles he played in that political party. The criticisms are tame compared to your average attack ad, and they have been in forums, wikis and blogs — places where right-of-reply exist. Despite apologies ( and offers to print whatever he wants, unedited, ('+right+to+reply) he has not been forthcoming to explain exactly why certain things others consider factual and/or fair are not seen so by him.

Be wary: anyone with an ‘interest’ in BC can sue there. It is quite possible for Americans to launch lawsuits there. Indeed, with a two year window in which to launch a libel suit, it is possible to create an interest in BC _after_ the material was published, and then sue. With the Internet being argued to allow world-wide publishing, BC looks like it may become the place to forum shop for libel suits.

If Crookes’ suits succeed, I suspect we will be soon enough seeing Americans suing each other in BC.

Charles Griswold (user link) says:

Re: The defamation standard in Canada is aristocra

If Crookes’ suits succeed, I suspect we will be soon enough seeing Americans suing each other in BC.

Not to seem contrary, but . . . what happens if another American sues me in BC and I simply refuse to notice the while thing? Seriously, what could they do to me? About the only negative consequences that I can see would be that I couldn’t go to Canada without being arrested.

As an alternative, I could just get a good lawyer and countersue in an American court which would, I imagine, not have a sense of humor about the BC lawsuit.

Mark Francis (user link) says:

Re: Re: The defamation standard in Canada is aristocra

A default judgment in BC is enforceable elsewhere, even in the US. An application would be made to your local court to enforce the ruling, which would be damages payable to the plaintiff. There might be something local to prevent it, but I don’t believe this is usually the case. Remember, you are being sued for something that happened in BC, not your home state. So your home state doesn’t have the jurisdiction to forbid or overturn the finding, even if such a court case would fail within the jurisdiction you live in.

You wouldn’t be arrested if you went to BC — this is just civil court… though Canada still does have criminal libel law on the books.

Canada is such a free speech backwater.

Geoff from Canada says:

So sue me – this guy’s an arse – His contributions to society are minimal and quite frankly he’s become tedious. I think we should all write nasty things about his frilly underwear collection on our blogs and countersue him for impersonating a human being!


Paul….errrrr…..steve…….errrrr…….tom…….awwww never mind, it’s Geoff, and he already knew that!

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