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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Hey, #2.
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The defamation standard in Canada is aristocratic
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: http://www.desmogblog.com/ball-bails-on-johnson-lawsuit
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 PBwiki.com 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 (http://openpolitics.ca/Wayne+Crookes) and offers to print whatever he wants, unedited, (http://openpolitics.ca/Wayne+Crookes'+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.
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Re: The defamation standard in Canada is aristocra
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.
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Sincerely,
Paul....errrrr.....steve.......errrrr.......tom.......awwww never mind, it's Geoff, and he already knew that!
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Re:
Now I'm not saying that RIAA = Al Queda but there similarities.
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Re: The defamation standard in Canada is aristocra
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.
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Thank you!
cristina.dumitru@publicationweb.com
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