Wayne Crookes: SLAPPing freedom of speech
p2pnet news view Freedom | P2P:- The defeat of Canadian businessman Wayne Crookes in his effort to stifle online freedom of speech is vitally important.
He sued p2pnet for defamation, claiming merely linking to a site he didn’t like was the same as publishing its content.
But BC Supreme Court judge Stephen Kelleher disagreed, ruling »»»
A hyperlink is like a footnote or a reference to a website in printed material such as a newsletter. The purpose of a hyperlink is to direct the reader to additional material from a different source. The only difference is the ease with which a hyperlink allows the reader, with a simple click of the mouse, to instantly access the additional material.
And, “Without proof that persons other than the plaintiff visited the defendant’s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication.”
p2pnet was, however, far from being alone in Crookes’ bid to cast a permanent freeze onto the Net.
Also sued were Google.com, Wikipedia.com, Pbwiki.com, Yahoo.com, MySpace.com, Openpolitics.ca, Domains by Proxy, Mark Francis, Mike Pilling, Hayley Easto, Kate Holloway, Craig Hubley, Warren De Simone, Frank Cameron, Catharine Johannson, Gareth White and various anonymous persons.
The Net, “serves as an important vehicle for free speech,” says the Canadian Internet Policy and Public Interest Clinic (CIPPIC) on Defamation and SLAPPs, going on »»»
Efforts to protect reputation need to be balanced against the public interest in maintaining the potential of the Internet as a medium of public discourse. The law of defamation needs to protect people from cyber-libel without squelching legitimate free speech. Lawsuits that allege defamation in order to curtail fair criticism – known as “SLAPPs” (Strategic Lawsuits Against Public Participation) – should not be permitted, either online or offline.
Blogs Mark Francis, another of the victims »»»
Wayne Crookes was a major financier to the Green Party of Canada in the period 2004-2007. He also held some appointed positions within that Party for some of that time. He was, to some, a controversial figure during a period of expansion and change within that Party.
Crookes sued a number of people, including me, for libel, claiming that a widespread smear campaign was being conducted against him.
A considerable portion of Crookes’ case against me was likely dealt a fatal blow when Yahoo successfully had Crookes’ case against them dismissed.
The p2pnet finding is very important to us all, as it establishes that a link does not necessarily have to be considered a publication of what lies on the other side of the link. The judge was careful to note that there are requirements which have to be met, such as the link being referenced in an editorially neutral way.
So your blogroll is safe. Linking for citation is fairly safe.
Caution: You can still be potentially successfully sued for linking if you recommended (directly or through innuendo) what lies on the other side of the link. If you are known, or are believed, to harbour malice towards the person, a simple link to defamatory content could also still get you in trouble.
Craig Hubley, someone else targeted by Crookes, says in a comment post to the p2pnet story detailing Kelleher’s decision »»»
This is only the first of five steps to end the threat posed by lawsuits like this to freedom of political expression.
1. Allow those who have expressed no particular opinion to link freely to the debate without fear of being themselves sued. Done!
Without this, as you point out, any discussion suffers chilling effects.
2. Allow those who host open political debate on contentious issues to mediate it without being sued simply for mediating or for not pre-emptively vetting all comment before it is displayed. That should be addressed in rulings in the openpolitics.ca case itself.
Without this, no one will dare host anyone debating political decisions and figures prominent in parties and movements online. The rich discourse we have online will dry up. Or worse, selectively dry up with only movements supported by the rich able to defend.
3. Adopt a US-style Sullivan standard for public speech on contentious public issues. That is, public figures who voluntarily entered the public realm to work in public roles in political parties directly to influence public decisions, or accept roles in government itself, may be scrutinized and criticized almost without limit, because failing to allow this would have grave consequences (qualified privelege). In particular, ensure that people who doubt someone`s integrity or sincerity can publicly voice those doubts without fear that they or their associates will be targetted. This should be addressed in rulings in Stephen Harper`s SLAPP suit against the Liberal Party.
Without this, mediators will be required to be unduly interfere in the public issue debate and will invariably censor those who take a strongly critical view. Remember, political parties advocate changes to law that other parties do not. So from the perspective of each of those parties, the others are criminals, that is, they are doing things that should be illegal. This is the nature of politics, that everyone considers their opponents crooked and unethical almost by default. And if they didn`t, they`d get away with more !
4. Ensure not only that liability does not accrue, but that the filing of suits itself is discouraged when debate is on public interest matters, i.e. SLAPP suits are discouraged by specific provisions prejudicial against the original plaintiff when countersued, or giving findings of fact deliberately useful in a human rights proceeding against the original plaintiff by any party whose speech is inhibited.
Without this, anyone seeking to silence specific critics who happen to be poorer than them can intimidate them into silence simply by filing suits that the plaintiff can afford to launch but the defendant cannot afford to defend. This becomes very unequal very quickly.
5. Ensure anonymity is protected in public issue debate to the same extent as it is with the secret ballot. That is, that civil discovery simply cannot be used to identify persons whose comment was confined to the public or political realm. Disclosure alone does harm.
Without this, civil discovery can be used to identify opponents by name and often also to identify their correspondents and allies. In the case of dissidents criticizing human rights violating regimes from safe haven countries this is devastating as it can result in the imprisonment, torture or death of innocent parties including themselves. This is especially dangerous if status to file libel suits is easily granted or lawyers acting for the plaintiff are careless or bribed to act against the court`s intent and release that information.
He adds: See http://cippic.ca for a good list of the issues, especially
http://www.cippic.ca/defamation-and-slapps/
http://www.cippic.ca/online-anonymity-and-john-doe-lawsuits/
Meanwhile, the Vancouver lawyer who successfully derailed Crookes was Dan Burnett, who’s also an adjunct professor at the UBC Graduate School of Journalism.
Soon after the decision was made public, he was interviewed by Rebecca teBrake, a first-year Master’s student at the school.
Stay tuned.
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October 29th, 2008 at 2:07 pm
Won’t the act of writing about these crooks’ lawsuits risk more lawsuits?