Wayne Crookes v The Net
p2pnet.net news view:- p2pnet is among a number of sites and people being sued by Canadian businessman Wayne Crookes (right) for alleged online libel.
It, and publisher Jon Newton, are being accused of linking to an article which still upsets Crookes. And because he says we refused to take the link down, we’re also accused of conspiring with the authors and publishers of the articles.
Writing on the case, famed Net law commentator Michael Geist says, “the consequences for defamatory speech should rest with those directly responsible, not mere bystanders with deep pockets”.
p2pnet has been, and still is, one of the very few sites to post on this. So it’s very far from being a looker-on. Nor does it have “deep pockets”. Wikimedia is, though, also among the sites targeted by Crookes and thankfully, it’s generously agreed to fold p2pnet’s suit in with its own.
Canadian Internet Policy and Public Interest Clinic (CIPPIC) staff counsel David Fewer said CIPPIC is keeping a close eye on the proceedings, going on:
In a Web 2.0 world, anyone can be a publisher. In this way, the internet acts as a great engine for freedom of expression. Unfortunately, we’re seeing this benefit threatened by litigation targeting parties who are more and more removed from allegedly defamatory content.
Innocent intermediaries, disseminators, and participatory forums like wikis, blogs, and news sites facilitate public discourse, and shouldn’t have to go to court to defend innocuous practices such as merely linking to another website.
The EFF (Electronic Frontier Foundation) is also watching carefully. Said senior EFF attorney Fred von Lohmann:
Any effort by Crookes to sue for defamation in Canada and enforce a judgment in the USA is going to run squarely into the First Amendment and the very clear legal immunities for online service providers under US law.
Online free speech simply couldn’t exist in a world where every online service provider has to worry about being sued in Canada for every comment posted by a user. I don’t think US courts are going to be friendly to that outcome.
In Canada, the Crookes-induced free-speech freeze is still on with all too many Canadian bloggers feeling unable to say much, if anything, about the case for fear of becoming part of it.
Here’s Geist on the subject >>>>>>>>>>>>>>>>>>>
Despite garnering only limited media attention, two recently filed defamation lawsuits in British Columbia have the potential to reshape free speech on the Internet in Canada. The suits pit Wayne Crookes, a B.C.-based businessman, against a who’s who of the Internet, including Yahoo!, MySpace and Wikipedia. Those companies are accused of defaming Crookes not by virtue of anything they have said, but rather by permitting their users to post or link to articles that are allegedly defamatory.
Crookes, who was involved with the Green Party of Canada, was unhappy with a series of Internet postings that he argues paint him as disreputable and as a bully. In response, he filed lawsuits against the posters. (Personal disclosure: Crookes previously demanded that I remove two comments posted on my personal blog by visitors to the site.)
The lawsuits target a handful of individuals who are said to have written the postings, including a Toronto-based librarian, a Cambridge-based engineer and several anonymous posters whose identities are unknown.
Had the lawsuits stopped there, they would not be particularly significant. Lawsuits alleging defamation are not unusual and the cases would likely have resulted in settlement discussions or full trials examining the merits of the claims.
The lawsuits could prove to be critically important to the Internet in Canada, however, because they cast the net of liability far wider than just the initial posters. Indeed, the lawsuits seek to hold accountable sites and services that host the articles, feature comments about the articles, include hyperlinks to the articles, fail to actively monitor their content to ensure that allegedly defamatory articles are not reposted after being removed, and even those that implement the domain name registrations of sites that host the articles.
The common link with all of these targets is that none are directly responsible for alleged defamation. Rather, the Crookes lawsuits maintain that Internet intermediaries should be held equally responsible for such content.
For example, one lawsuit argues that Yahoo! refused to shut down an offending site – a Green Party of Canada chat board – and therefore libelled Crookes. Similarly, MySpace is targeted both for its failure to shut down a personal page that contained allegedly defamatory content as well as for its refusal to remove a link to OpenPolitics.ca, a site that the suit claims hosted defamatory content (Crookes has also sued OpenPolitics.ca).
The inclusion of Wikipedia in the lawsuit extends the circle of liability even further. According to the statement of claim, an article about Crookes appeared on three occasions in Wikipedia. In each instance, Crookes asked Wikimedia, the company that maintains the popular online encyclopedia, to remove the article. In each instance, it complied with the request.
Despite taking down the content, Wikimedia has now been sued for failing to “monitor its website to ensure that the libels of [Crookes] did not reappear on its website.” Moreover, the suit also seeks to hold it liable for refusing to remove an article on online journalism that contains a hyperlink to an article about Crookes.
The broadest extension of liability in the lawsuit involves the inclusion of a U.S.-based service called Domains By Proxy. The company, which allows individuals to protect their privacy by anonymously registering domain names, is being sued for refusing to divulge the identity of the registrant of a website that contained an article about Crookes. The lawsuit argues that the domain name registration service has “accepted responsibility for the actions of the owner of the website.”
While it will fall to a judge to determine whether the articles and postings are indeed defamatory, the inclusion of such a broad range of Internet intermediaries could have a significant chilling effect on free speech in Canada.
If successful, the suits would effectively require websites – including anyone who permits comments on a blog or includes links to other sites – to proactively monitor and remove content that may raise liability concerns. They will also call into question the ability of domain name registrants to guard their privacy by refusing to publicly disclose their identities.
In response, it is likely that many sites will simply drop the ability to post comments, since the challenge of monitoring and verifying every comment will be too onerous.
Alternatively, many sites may abandon Canada altogether by establishing their online presence in the United States. Courts in the U.S. have repeatedly denied attempts to hold intermediaries liable for content posted by third parties on the grounds that a 1996 statute provided them with immunity for such postings.
Canada would do well to introduce a similar provision, since the consequences for defamatory speech should rest with those directly responsible, not mere bystanders with deep pockets.
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at www.michaelgeist.ca.]
Also See:
alleged online libel – Wayne Crookes sues the Internet, April 25, 2007
