[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