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

Tue, Aug 4th 2015 9:52am — Tim Cushing

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.

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.

Veck testified that he didn't know the article had been retracted when he posted it to his site.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."

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

35 Comments

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Anonymous Coward, 4 Aug 2015 @ 10:14am

Is this proof Warman is a radical litigious anti whatever the heck he is?
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Sheogorath (profile), 4 Aug 2015 @ 10:17am

I'd like to see the buggers extradite me from England for the following: A top brain surgeon stated that some Canadian legislators and justices have brown matter where there should be grey (technically yellow).
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Anonymous Coward, 4 Aug 2015 @ 10:40am

What exactly is different about this? I'm fairly certain that news organizations have always been liable for articles that they post on their sites or print in their newspapers, even if the article was written and published by an independent journalist.

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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Anonymous Coward, 4 Aug 2015 @ 10:59am

CDA § 230
The internet is a freewheeling media for speech,, and Congress has rightly immunized even users of interactive computer services from civil liability arising from republishing defamatory speech by others.

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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Paul Renault (profile), 4 Aug 2015 @ 11:15am

Re: CDA § 230
Uhhh, you do realize that this was a Canadian court ruling, eh?

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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Anonymous Coward, 4 Aug 2015 @ 11:17am

Re: Re: CDA § 230
It would be a vast improvement on what passes for your countries' legal structure if you did.
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pacanukeha (profile), 4 Aug 2015 @ 11:40am

If only the author of a defamatory statement were eligible to be sued then absolutely nothing would stop defamatory statements from propagating ad infinitum. The author could ask a friend, or even create a separate legal corporate entity and have the content hosted with no threat of reprisal. That doesn't make sense to me. The judge's comments about the attitude, however, are full of shit.
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Anonymous Coward, 4 Aug 2015 @ 12:28pm

Re:
The difference is this.

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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Anonymous Coward, 4 Aug 2015 @ 12:43pm

Re: Re:
..."Alice says 'Charlie is a racist'"...

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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Roger Strong (profile), 4 Aug 2015 @ 12:47pm

Re: Re: Re: CDA § 230
The U.S. legal structure shook its pom-poms while United States became a torture state, and still doesn't have a problem with it. It has no problem with holding suspects for over a decade without charges or trial.

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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mattshow (profile), 4 Aug 2015 @ 1:12pm

Here's a not-so-gentle reminder that Canada's defamation laws are significantly different than those in the United States.

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

What if I republish another person's statement? (i.e. someone comments on your posts)

Generally, anyone who repeats someone else's statements is just as responsible for their defamatory content as the original speaker—if they knew, or had reason to know, of the defamation. Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act, which provides a strong protection against liability for Internet "intermediaries" who provide or republish speech by others. See the Section 230 FAQ for more.

The vast weight of authority has held that Section 230 precludes liability for an intermediary's distribution of defamation. While one California court had held that the federal law does not apply to an online distributor's liability in a defamation case, the case, Barrett v. Rosenthal, was overturned by the California Supreme Court (EFF filed an amicus brief in this case)

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:

Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However, if you selected the third-party information yourself, no court has ruled whether this information would be considered "provided" to you. One court has limited Section 230 immunity to situations in which the originator "furnished it to the provider or user under circumstances in which a reasonable person...would conclude that the information was provided for publication on the Internet...."

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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Roger Strong (profile), 4 Aug 2015 @ 1:16pm

Re: Re:
I get the impression that it's a bit more than that: Bob can quote what Alice said in conversation. But publishing is held to a higher standard. And republishing is still publishing.

(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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avideogameplayer, 4 Aug 2015 @ 1:18pm

But he found the mistake and corrected it...

Why would he still be liable?
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JoeCool (profile), 4 Aug 2015 @ 1:49pm

Re: Re: Re:
Except that the article doesn't say Alice was "proven wrong", merely that she retracted her statement to settle out of court. For all Bob knew, Charlie may have told Alice that he'd keep her in court for decades with his money, so she decided that giving in to an out-of-court settlement was better than spending a decade in court. Sounds like this court read too much into the settlement while assuming Bob SHOULD have known more about the settlement than he clearly did.
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Anonymous Coward, 4 Aug 2015 @ 2:10pm

The article is filed under the tag "Patrick Warman". Who is Patrick Warman? Is Patrick another way of saying Richard?
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Anonymous Coward, 4 Aug 2015 @ 2:23pm

The problem is that Veck posted a defamatory article and then used weasel words in response to a demand that it be removed and suffered the consequences. Had he given a fulsome retraction and apology rather than weaseled he wouldn't be out 10 grand. Copying a defamatory article and reposting it verbatim is publication and defamation - it may also be a violation of copyright laws but that's beside the point.
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Anonymous Coward, 4 Aug 2015 @ 2:25pm

Re: Re: Re: CDA § 230
Nah, the CDA is just a pro-IT industry sop and has opened the floodgates for anonymous cyberlibel. Eventually, it will be rescinded or overturned.
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Anonymous Coward, 4 Aug 2015 @ 2:26pm

Re:
"But he found the mistake and corrected it...But he found the mistake and corrected it..." He didn't correct it, he used weasel words. He didn't apologize and say that the material was defamatory, he simply removed it and said Warman said it was defamatory. There's a difference.
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Roger Strong (profile), 4 Aug 2015 @ 2:31pm

Re: Re: Re: Re:
The judge made it clear that the original article "was without foundation." Alice/Levant made a wild and unsubstantiated claim, had no evidence or facts to back it up when called on it, and retracted it.

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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Anonymous Coward, 4 Aug 2015 @ 4:11pm

Re: Re:
It's a bit more complicated than that -- Bob likely wouldn't be successfully sued for publishing Alice's libel as libel; Bob would be sued successfully only if it could be proven that there was intent, just like in the original case.

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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Anonymous Coward, 4 Aug 2015 @ 4:38pm

Re:
If you read the article you would realise that Patrick Warman is the guy who was being defamed who filed the suit. If you were trying to be clever...well, you failed.
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DanA (profile), 4 Aug 2015 @ 4:54pm

Re: Re: Re: Re: CDA § 230
Or more accurately the CDA immunizes hosts from liability for the any potential libel on the part of its users and prevents non-originating users from being held liable for things like nested comments. The user who originally wrote the libelous comment are still fully liable for any libel. It adds the tiny hurdle of filing suit against a Doe and performing discovery against the host to acquire the information retained about the libelous user but frankly if that is enough deterrent against filing suit then it was a vastly unworthy lawsuit to begin with. Sites are still accountable legally for any material that they exert editorial control over, just not that of their visitors.

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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DanA (profile), 4 Aug 2015 @ 5:15pm

Re:
Techdirt actually missed the mark even more because it stated that US defamation laws would have produced a different outcome which is far from clear. At this time reposting someone else's defamation as part of a larger article making the same point is exercising sufficient editorial control that Veck takes on legal responsibility for verifying the veracity of that content. If he had taken even the barest amount of effort to do a Google search he would have know that the original had been retracted thus he falls under the standard of 'reckless disregard for the truth' which would result in him being guilty of libel even if Patrick Warman was considered a public figure (a dubious claim given his 'fame' is largely involuntary).
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mattshow (profile), 4 Aug 2015 @ 5:22pm

Re: Re:
If you read the article you would realize that Richard Warman is the guy who filed the suit. There is no Patrick Warman in this story. Which is the point that the first AC was trying to get across.
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Anonymous Coward, 4 Aug 2015 @ 7:40pm

Re: Re: Re: Re: Re: CDA § 230
That's a bs argument ITers like to use. Yes, someone shouldn't be held responsible for innocently disseminating a defamatory article solely by virtue of being the owner or ISP of a site on which someone else has posted, or for reposting a news article - however, once that person/webmaster/ISP is informed that the material is defamatory and fail to remove it they should become liable. Otherwise, it's too easy for anonymous defamers to post things that can never be removed because they can't be found and too easy to victimize people through third and fourth party repetition of a defamation. It doesn't matter if you're the original source of the defamation or not, if you fail to fully retract the defamation once you're informed it's defamatory (which the defendant here failed to do) then you're liable (or should be).
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Whatever (profile), 4 Aug 2015 @ 11:39pm

Re: Re:
Happy August everyone.

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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DanA, 5 Aug 2015 @ 1:16pm

Re: Re: Re: Re: Re: Re: CDA § 230
Nope. Nope. Nope. A whole bucket of nope.

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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Anonymous Coward, 5 Aug 2015 @ 4:03pm

Re: Re: Re: Re: Re: Re: Re: CDA § 230
Have you read the article? Warman was willing, and in fact, did file a lawsuit and he wasn't anonymous.
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DanA, 6 Aug 2015 @ 12:55pm

Re: Re: Re: Re: Re: Re: Re: Re: CDA § 230
We weren't discussing the article directly but rather section 230 of the CDA which is the law of an entirely different country than the one in which the defamation and lawsuit took place in.

Try to keep up.
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Nop (profile), 7 Aug 2015 @ 4:12am

Unlike so many ridiculous judgements on Internet cases, this one was completely reasonable:
"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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jaquer0 (profile), 16 Aug 2015 @ 12:18am

Re: Re:
Not so under U.S. law. If "Charlie is a rapist" is presented as a statement of fact, whether or not attributed to a source, it is clearly defamatory and potentially libelous. There are various defenses, for example, that it was a report on a trial or Congressional hearing, or if the statement were quoted about a public figure and some controversy that surrounds the person, in which case the standard is not whether the statement was false but made with "actual malice," meaning knowing it to be false or in reckless disregard of whether or not it was true.

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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jaquer0 (profile), 16 Aug 2015 @ 12:51am

Re: Re: Re:
IANAL but a journalist that has been trained and exposed to these questions for decades.

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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jaquer0 (profile), 16 Aug 2015 @ 3:27am

This is a preposterous article
Despite this Techdirt author's twisted reasoning, Veck did publish the libelous article, in its entirety, long after it had been retracted by the original publisher.

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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Stoatwblr (profile), 16 Aug 2015 @ 11:23am

Re: Re: Re: Re: Re: Re: Re: CDA § 230
"That simply allows anyone to censor literally anything they want by claiming it is defamatory."

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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