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.

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Veck testified that he didn't know the article had been retracted when he posted it to his site.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

Filed Under: anne cools, canada, defamation, jonathan kay, liability, linking, michael veck, patrick warman, reposting

Canadian Court Issues Triple-Whammy Ruling In Favor Of Free Speech And Commentary Online

from the fair-dealing dept

Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

Filed Under: canada, fair dealing, jonathan kay, linking, richard warman
Companies: access copyright, national post