Canadian Court Orders Blogger Who Reposted Another Writer's Defamatory Statements To Pay $10,000 To Defamed Party
from the hooray-for-secondary-liability! dept
Here's a not-so-gentle reminder that Canada's defamation laws are significantly different than those in the United States. A former Senate staffer is on the hook for $10,000 in damages for "publishing" a defamatory article on his website back in 2009. The thing is: it wasn't his article.
In 2008… Jonathan Kay, then a National Post columnist, published an article that repeated allegations that [human rights advocate Richard] Warman was the author of an article posted to a right-wing website that contained “misogynist” and “racist” comments about Anne Cools, the first black Canadian appointed to the Senate.Veck testified that he didn't know the article had been retracted when he posted it to his site. After being served with a libel notice by Warman, Veck apologized for posting the false article and took it down, noting that Warman claimed it contained "false allegations."
Warman served a libel notice on Kay and the National Post, which was later settled after Kay and the Post retracted the article.
But Kay’s article was republished by others, including [Michael] Veck, who posted it to a website knows as WAIS (the World Association for International Studies) as part of a longer article that characterized Warman as a “radical anti-racist” who had tried to manufacture “phoney-racism,” Corbett writes.
That should have been the end of it, but Warman pressed on with his lawsuit. And the presiding judge apparently felt Veck's apology just wasn't obsequious enough.
“The substance of Mr. Veck’s retraction is that, because Mr. Warman disagrees with the article, Mr. Veck is withdrawing it,” the judge wrote. “This substance falls short of acknowledging that the article was without foundation.”So, Veck gets a bill for $10,000 while others who did the same thing were able to escape with nothing more than the loss of a little dignity.
Warman said several others who republished the allegations in Kay’s column, including conservative writer Ezra Levant, have recently retracted them and apologized.Veck didn't make these defamatory allegations himself and yet he is being held responsible for the words of others. That's because Canadian law doesn't consider the originator of the false claims to be the sole responsible party. The law considers "publication" to be an essential ingredient in libel suits and Veck's re-posting of the National Post article opened him up to liability, even if all he did was quote someone else's statements, word-for-word.
Now, as Mike noted back when Warman began filing these lawsuits, the implications of the law were troubling, especially as it could be construed to read that simply linking to defamatory material was itself defamation. A Canadian court determined later that linking was not defamatory but did point out that if the link text itself contained any defamatory material, the linking party could be held liable.
In this case, Veck basically republished an entire article, which as the courts have read the law, make him just as liable for the defamation as the person who actually wrote the article. Veck is a "publisher" in the eyes of the law, even if he truly didn't "publish" anything in the more traditional sense of the word. (As in not being the originating party.) And with that prong of the law satisfied, Veck is as culpable as if he'd written the statements himself.
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Filed Under: anne cools, canada, defamation, jonathan kay, liability, linking, michael veck, patrick warman, reposting
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And techdirt has always been strongly of the opinion (and rightly so) that there should be no legal definition of journalist or news organization such that it would prevent people from publishing information because they aren't "real" journalists.
And you can't really have it both ways. Either anyone can post things they consider news, and are therefore liable for the things they publish (or republish as the case may be), or only certain people are granted this distinction and so everyone else is protected from liability on the one hand, but possibly prevented from publishing certain things at all on the other.
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In the U.S., if Alice writes "Charlie is a rapist," Charlie can sue Alice for libel.
If Bob writes, "Alice says 'Charlie is a rapist,'" then, as long as Alice actually said that, Bob can't be sued for anything.
In Canada, things are much the same for Alice. However, even if Bob just publishes someone else's words (basically saying "Alice says 'Charlie is a racist'") then under Canadian law, Bob can be sued just for re-publishing Alice's libel.
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Maybe not libel but defamation of character. They might not win their case but they can cause you to spend time and money defending.
(And if you meant to write 'rapist' instead of 'racist' just blame "Damn You Autocorrect"! Your point is still valid.)
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(It's much the same in Canada with copying music. We're explicitly allowed private copying of music - copying among family and friends. But NOT publishing - say, throwing it up on a public web site. BitTorrent is on the risky side of the grey area in between, because as you download you're also uploading to other users you don't know. Publishing/republishing.)
Even then, Bob can issue a retraction stating that Alice was proven wrong. In this case, "Bob" didn't. He merely said that Charlie disagreed with Alice.
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That's Levant's schtick; why he's been successfully sued for libel, apologized and issued retractions so many times before this. He's the outrage machine in the Sun infotainment empire - known in Canada as Fox News North. It doesn't matter if he was wrong; all Sun needs to do is print a retraction on page 27, and carry on as if nothing happened. His viewers will still repeat his statements as if they were true. In the mean time it only gets him more faux outrage, more publicity, and more viewers.
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In this situation, I get the feeling that we're missing a bit of the back story, as only one person's been sued, and that appeared to be someone who was attempting to profit off using Charlie as an example, even after that example had been disproven in court.
So the examples would be:
1) Charlie spends lots of time with young children.
2) Alice reports that Charlie is a pedophile
3) Charlie sues Alice for libel, and Alice makes a complete (and public) retraction, stating that Charlie is NOT a pedophile, and removes the original statement.
4) Various people report on this; nothing happens.
5) Bob finds the original retracted article and re-posts it in full, as part of a larger article he wrote himself painting Charlie as a radical anti-pedo who manufactured his own pedophilia under a fake name.
6) Charlie sues Bob for libel, and Bob removes the original article from his longer article, replacing it with a comment that it is removed because Charlie disagrees with its content.
In my view, it's obvious that Bob is still liable for libel, whereas if he'd stated that the court found the original article was baseless, he wouldn't be. The other re-posters didn't get into this situation because they fully retracted their repostings and any conclusions drawn from those repostings when they were confronted.
It's possible that it was just a miscommunication and that Bob was truly unaware of the previous libel suit, and that Charlie didn't tell him when he asked him to take down the reposting. But the court felt otherwise, and I'd tend to agree with them here. Bob had more of an agenda, and after being notified that his lack of research resulted in a libelous article (his, not just the original), he stuck to his agenda while doing the minimum to comply with the request.
I don't even see much room for chilling effect here. The only issue that could be raised is if someone re-posted a libelous article while being unaware it was libel, and then after the suit was won, they were asked to take it down without notification that it had been deemed libel by the court.
But in this case, the prosecution has to prove the same case as with the original posting, and the suit would fall flat, as long as the defendant retracted the re-post. That's a big enough hurdle that there shouldn't be much of a chilling effect from this decision.
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If Bob republishes the libelous article or the most significant parts, once it has been admitted to having been false, or having been rules libelous, even with a thousand disclaimers, he is likely to still be found liable for libel.
Bob's citing court judgments or retractions are only likely to increase his liability UNLESS his reference to the libelous claims is very brief, extremely cautious and references judicial prceedings or settlements that are a matter of public record.
For example, when reporting on a court case: "Mike falsely accused Charlie of inappropriate conduct with minors. A court found the accusations without merit and ordered Mike to pay XX thousands of dollars to Charlie as compensation."
If people can simply republish a libel and cover themselves by including a disclaimer that would soon become purely perfunctory, protection against libel and defamation would vanish.
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IANAL, but I am a journalist with more than four decades of experience that's been exposed repeatedly to training in major news organizations as well as concrete cases involving consultations with lawyers.
Republishing a libelous article makes you just as liable as the original publisher. In the case of a public figure, you *might* have a little more protection, depending on your agreement with the writer or syndication service handling the article and your procedures (for example, articles from the service usually get posted automatically but the service is required to flag for review by each client, preventing automatic publication, articles asserting derogatory information about any person or entity).
If by simply attributing the statement to a source, one could avoid liability for libel or defamation, then to all intents and purposes there would be no protection against libel or defamation.
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Stories like this are why I generally take Techdirt like TheOnion at times... because you can't imagine them writing stuff like this with a straight face.
Regardless of source, if you republish a defamatory or libelous statement or article, you are responsible for it. It doesn't matter that someone else wrote it first, you are still the publisher.
The same general rules apply pretty much everyone in the world, including in the US. Don't let anyone fool you, even the EFF knows it.
Putting "on the internet" on the end of something doesn't magically make it exempt from the law, especially when the law is reasonable.
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CDA § 230
This is the holding of among others the California Supreme Court in Barrett v. Rosenthal and the Ninth Circuit in Batzel v. Smith.
There is a strong public policy interest in not holding ordinary people responsible for forwarding emails and liking messages on Facebook.
It does not necessarily follow from the First Amendment, but § 230 of the CDA is just analogous to a strong anti-SLAPP statute.
It shields people for civil liability when engaging in innocent everyday retelling of others' stories.
So yes, there should be no distinction between journalists and ordinary users, and under § 230 a journalist or a blog troll can republish even defamatory speech authored by others, and he isn't liable.
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Section 230 of the Communications Decency Act, if fact ALL of the CDA, doesn't apply in Canada, much as your country seems to treat of the rest of the world as if it was the 51st state.
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It's the legal structure that cheerfully allows the police to become little more than a criminal class through the magic of "asset forfeiture." The legal structure that routinely refuses to prosecute police when they're caught murdering someone. The legal system that allows Rightcorp and their ilk to turn mass barratry into a business model.
As for defamation lawsuits, as an American you better hope that you have Oprah Winfrey's legal budget before you say that you won't eat hamburger - and get sued for "false defamation of perishable food" and "business disparagement."
But thanks for the amusement.
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Without CDA 230 much of the functionality of the internet would become unfeasible as everything would need to be manually reviewed before linking or they could be liable for whoever they are linking to's actions. Google couldn't give you search results with a snippet of text to give context to the link, no comment sections, no youtube, not even web chats would be safe without hosts being protected from the unsupervised actions of users.
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That simply allows anyone to censor literally anything they want by claiming it is defamatory. A lot of people falsely believe that simply because something portrays them in a bad light despite being true that it is defamatory. If there isn't already a legal decision that it is defamatory or the individual being defamed is unwilling to file a lawsuit then putting the onus on platforms to judge the claim of an anonymous person that something is defamatory towards them is unduely burdensome. We have a complex legal system to determine if something is defamatory and it is completely unreasonable to expect every platform to be the equal of the court to assess the law of every jurisdication without discovery, witnesses, lawyers, or any of the other tools the court uses.
Platforms should assist the original poster to remove any material that is defamatory if they wish to do so because they realised it was wrong or wish to mitigate the legal consequences for their defamation but they should never be required to do so by a third party without a judicial decision. To do otherwise is to apply the same abuses of DMCA takedowns that we currently see and apply it to every article/video/comment section/podcast on every platform on the entire internet while increasing the scope for abuse. The only outcome would be to destroy the functioning of the US based internet and drive all platforms from hosting, operating, or being owned in the US.
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Try to keep up.
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Firstly: Defamation claims are the one area of law where _everything_ goes topsy-turvy.
A: You either have to prove what was uttered was true and in the public interest (in some countries even that isn't enough. Defamation is frequently upheld in many countries despite statements being provably true, on the basis that they injured public opinion of the plaintiff)
or
B: prove that you didn't utter it at all. (proving a negative...)
It's like bring in the court of the red queen.
Secondly: Republishing defamatory material is also defamation and makes the republisher liable.
Thirdly: The defamed is free to pick and choose who he goes after. (yes really)
Fourthly: In most countries (including Canada), republication restarts the limitations timer and several countries have ruled that each successive web visit is a new publication.
Fifthly: Even publishing the accusations made by the plaintiff's lawyers may count against you in court.
Defamation actions are almost entirely about who has deeper pockets - and of course in the USA there's no concept of "loser pays", even for vexatious actions.
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According to the EFF, this is exactly the way US defamation laws operate outside the context of the Internet. From https://www.eff.org/issues/bloggers/legal/liability/defamation
So, it sounds as if, at least on the Internet, US defamation law would reach a significantly different result (although in traditional print publishing, probably not). But wait, there's more! If you go to the EFF's Section 230 FAQ (linked from that first article), they state:
Now, I know that skimming a few EFF FAQs is not a substitute for actual legal research. But it sounds to me like it's not so certain at all that a US court would have found differently.
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Why would he still be liable?
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"In this case, Veck basically republished an entire article, which as the courts have read the law, make him just as liable for the defamation as the person who actually wrote the article."
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This is a preposterous article
He incorporated the libelous article into his own, when the original publisher's retraction was a matter of public record and easily discoverable on the Internet. Veck republished the libelous article by making it part of one that he himself researched and wrote attacking Warman.
Tim Cushing's claim in this Techdirt post that there is such a difference between "publishing" and "republishing" that Veck "truly didn't 'publish' anything in the more traditional sense of the word," is preposterous.
Being a "publisher" doesn't mean you are the author of the piece, it means you are the one bringing it to the public and therefore does make you responsible for it, whether your are the first to publish it or many more have done so before you.
Especially when dealing with a harshly accusatory article that will harm someone's reputation, a publisher, i.e. someone who consciously chooses to present such an item to the public, is under a moral and journalistic obligation, as well as a legal one, to check out the claims made in the article.
How much or how little this entails will depend on a host of circumstances. But a publisher is responsible for what s/he publishes.
But in this case Veck's responsibility is even more unambiguous. He incorporated the entire libelous piece into one of his own. He embraced it and vouched for it by treating it that way.
Veck's claim that "he didn't know the article had been retracted" is a perfect illustration of a libel that I think meets even the very strict American "actual malice" standard (applied to public figures under US law). "Actual malice" means publishing something derogatory knowing it to be false or in reckless disregard of whether or not it is true.
It is called "actual malice" because the circumstances show the real and overriding motive was to attack the person's reputation, no matter what.
In the course of his own polemical attack on Warman, Veck republished another attack on Warman, apparently without doing as much as an internet search, because such a search would undoubtedly have turned up the retraction.
I flat-out find it not credible that Veck did not already know the article he republished had been withdrawn when he not just republished it, but vouched for it even more emphatically by incorporating it into his own piece.
He was obviously researching Warman at the time, and Warman's lawsuit and the paper's retraction were a matter of public record and even of some notoriety. Veck could not have avoided discovering the retraction with the barest minimum of investigation.
Moreover, Veck's retraction underlines that he was acting in bad faith. He carefully steps around admitting that what he published was false, saying Warman “states that these allegations were false, and so I wish to retract them and apologize.”
This is not a lack of obsequiousness, as the author of this Techdirt piece claims, but of honesty.
In my opinion, the author of this piece, Tim Cushing, has no business writing about these issues. He says in his lead, "Here's a not-so-gentle reminder that Canada's defamation laws are significantly different than those in the United States," later on explaining that:
"Veck didn't make these defamatory allegations himself and yet he is being held responsible for the words of others. That's because Canadian law doesn't consider the originator of the false claims to be the sole responsible party."
Can Tim Cushing name a single country anywhere in this world, nay, in this solar system, where the law says only "the originator of the false claim" is "the sole responsible party?"
Neither here nor anywhere else does the law allow a publisher to evade responsibility for what they publish. And in many countries, this sort of libel might get you not just a civil judgment, but criminal charges.
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