[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