[Section 15] Why political speech needs protection

I think I often write better comments on other people's blogs, than posts on my own.

As you may know, I am being sued by Wayne Crookes for defamation. (See I am being sued by Wayne Crookes for some background.)

Here's an edited version of what I posted on Michael Geist's blog in further response (see what I posted earlier today) to his column:

A person's right to reputation does not override another's right to expression, nor does a person's right to expression override another's right to reputation. People also have a right to privacy, which in Canada also comes into conflict with freedom of expression.

All of these rights have to be balanced with each other, along with the many needs of a free and democratic society.

If Internet intermediaries were to be found responsible in this case, then the clear effect would be the curtailment of freedom of expression, based upon the _presumption_ that libel would otherwise be the result. I can't imagine a workable system, which would be sufficient to guard intermediaries while still allowing our expressions. Not only is it onerous for a provider of Internet services to fact-check everything written, libel can be a terribly complicated affair in Canada, not always evident to a reader, but nevertheless clearly evident to the subject, assuming they are being honest about it (which is a problem in of itself.)

The classic example is someone writing that a certain person wears a red scarf. Is that libelous? Well, apparently not even if not true, but if a red scarf worn in the person's neighborhood is proof positive that the subject is a gang member, when they actually don't wear such a scarf, libel has been done... even if the author had no idea.

How would an intermediary know that such writing was libelous?

In a more general sense, it is far too much to ask such intermediaries to be the arbitrators of what is acceptable. Do we want a profit-driven series of corporations to decide what we post and what we don't? Would they? No, they wouldn't. If such a liability existed, even if they still allowed us to express ourselves without prior vetting, at the first sign of a complaint, they would take down whatever was written in order to avoid or to minimize their liability. I think it's clear how easily that can be abused. And please, don't doubt that it is.

America, the UK and Europe and many Commonwealth nations have long since moved on in their libel law. We need to as well. Just use common sense here: Is it not more effective to battle defamation online by writing a reply? Compare that to spending several years in court trying to get it corrected. It's absurd.

Are we to also hold ordinary people like myself to the same standards held by traditional media? Can't we have conversations online, exploring issues, and, yes, making mistakes, without being unduly worried about someone flush with cash coming by and pounding to death with archaic law our discussions?

Though I can understand my private neighbours being disturbed if I started writing about them online, I can't say the same about Stephen Harper, or Elizabeth May, or any of the people who stand behind them, sometimes largely hidden from view, yet affecting governance and political dialogue in our society. Political speech is very important to the health of a society, and many democratic jurisdictions in our world have come to realize this and have adjusted their libel law to suit. [Want a long, complex read? See the UK's solution: Reynolds v. Times Newspapers and Others]

Not in Canada. Here, the law used by the aristocrats of yesteryear still prevails.

I agree that people should not be allowed to perpetuate lies clearly presented as fact, which would otherwise harm a person. However, we are not fools. We know the difference between fact and opinion. As long as the opinion is derived from fact, regardless as to why the person is writing it, as long as they subject is public, then so be it. Anything else leads us down the road to where free speech exists only in the hands of oligarchies and rich or connected individuals.

As for anonymous commenters, c'mon! They're anonymous! Since when do unverified statements from anonymous cowards have any weight on the Internet?

That being said, unless Canadian libel law shapes up, free speech on the net will be moving offshore, spoken and hosted anonymously.

How is that going to be good for anyone?

David Weekly, CEO of PBWiki and another Crookes defendant, came by Geist's blog and pointed out that he could never afford to vet posts from Canadian to the millions of wiki pages his site holds. He'd just ban us with a Chinese wall. Too much liability otherwise.

Things are going to have to change.

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Posted By Mark Francis to Section 15 at 4/30/2007 09:04:00 PM

[Section 15] Michael Geist on the dangerous significance of Crookes' lawsuits

Law professor Michael Geist has penned a column concerning some of the lawsuits recently launched by Wayne Crookes. I am a defendant in one of them -- see I am being sued by Wayne Crookes for more details. Geist does not concern himself with any merits of the defamation claims; rather, he concentrates on the really large issues raised, which, if the suits are successful, will affect us all:

The lawsuits could prove to be critically important to the Internet in Canada, ... because they cast the net of liability far wider than just the initial posters. Indeed, the lawsuits seek to hold accountable sites and services that host the articles, feature comments about the articles, include hyperlinks to the articles, fail to actively monitor their content to ensure that allegedly defamatory articles are not reposted after being removed, and even those that implement the domain name registrations of sites that host the articles.

The common link with all of these targets is that none are directly responsible for alleged defamation. Rather, the Crookes lawsuits maintain that Internet intermediaries should be held equally responsible for such content.

In other words, Yahoo is to be held responsible for posts in the closed GPC-Members Yahoo group and links to other sites Crookes has problem with; Google is to be held responsible for the contents of an anonymous blog on Blogspot, and for the contents of its search engine; Wikipedia held responsible for not banning an entry; PBWiki held at fault for an GPC election wiki... to name a few.

Libel laws in Canada are archaic and can be very confusing. Despite what many believe, you can libel someone in Canada even when speaking about the truth, and there is no exception of any kind for political speech or commenting on public figures, which is law at odds with most of the democracies in this world, who have long since reformed their libel laws.

If these laws, which vary province to province, are not updated, 'open' online forums and blogs will eventually wither and die. Wikis, such as the one operated by Mike Pilling, are very much endangered as well, probably more so.

These lawsuits are reaching across the border into the United States. Anyone who can argue to have an interest in British Columbia can launch a libel lawsuit there against content 'published' on the Internet in another jurisdiction. Leaving these particular lawsuits behind, can you imagine the bizarre state of affairs we would have if America politicians made it a point of establishing numbered companies in BC, so they could use backwards BC laws to shut down
their opponents' published statements? How about foreign corps using BC libel law to shut down discussions about the use of child labour etc...?

Should the entire 'Global Village' have to follow the restrictive laws of just one of its tiny huts?

Note that Geist mentions himself receiving a letter from Crookes requesting two posts to be removed from his blog.

Geist concludes with this:

While it will fall to a judge to determine whether the articles and postings are indeed defamatory, the inclusion of such a broad range of Internet intermediaries could have a significant chilling effect on free speech in Canada. If successful, the suits would effectively require websites - including anyone who permits comments on a blog or includes links to other sites - to proactively monitor and remove content that may raise liability concerns. They will also call into question the ability of domain name registrants to guard their privacy by refusing to publicly-disclose their identities.

In response, it is likely that many sites will simply drop the ability to post comments since the challenge of monitoring and verifying every comment will be too onerous. Alternatively, many sites may abandon Canada altogether by establishing their online presence in the United States. Courts in the U.S. have repeatedly denied attempts to hold intermediaries liable for content posted by third parties on the grounds that a 1996 statute provided them with immunity for such postings.

Canada would do well to introduce a similar provision, since the consequences for defamatory speech should rest with those directly responsible, not mere by-standers with deep pockets.

I'll go a step further and suggest that services such as those offered by Google would become constrained in Canada by a Chinese wall. Looking at what is being argued, it's clear that content written and hosted outside of Canada would be subject to Canadian libel law as long as the subject claiming libel had an interest inside the country. To prevent such a thing, foreign content would have to be filtered coming into the Canadian portion of the Internet.

That's not libel chill. That's libel freeze.

I am not arguing that any of this is advocated by Crookes. I do not know the man. Any understanding that I have is limited to the statements of claim he has submitted to the courts. I strongly suggest that Crookes himself is not relevant here. If it wasn't him doing this, it would eventually be someone else.

You can comment on the article at Geist's blog. The column appeared in day's Toronto Star at http://www.thestar.com/Business/article/208639

As sadly must be the case, comments are closed on this topic as I can't afford the liability. Go comment over at Geist's site.

While you still can.

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Posted By Mark Francis to Section 15 at 4/30/2007 02:45:00 PM

[Section 15] TEST

TEST

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Posted By Mark Francis to Section 15 at 4/26/2007 05:26:00 PM