p2pnet news view | P2P | Politics:- Online defamation is in the news in Britain where changes proposed by the ministry of justice, “could see the end of the 160-year-old ‘multiple publication rule’ which media and civil liberties campaigners have argued, “drastically limits freedom of speech,” says the BBC.

On Tuesday, p2pnet posted p2pnet wins precedent-setting Crookes appeal as the headline to story centering on a dire threat to online freedom of speech posed by Vancouver, BC, businessman Wayne Crookes who used Canada’s antiquated libel laws to try to claim merely linking to an article constitutes publication.

“But in a ruling with implications for not only Canadians, but for everyone everywhere with a net account, the  Court of Appeal for British Columbia has agreed with BC Supreme Court judge Stephen Kelleher’s decision that website owners aren’t responsible for defamatory content on other sites to which they’ve linked,” we said.

The ruling’s importance to freedom of speech, online and offline, is obvious.  If Crookes had won, he’d have succeeded in casting virtually unbreakable chains on the net. Anyone with a website which linked to something someone somewhere in the world didn’t like would have been in danger of being on the sharp end of a defamation lawsuit.

He now has 60 days to file an appeal with the Supreme Court of Canada and if it decides to listen to him and then upholds his claim, the net will be frozen. Solid.

The chances of that happening aren’t high, but …

Defence of qualified privilege

In Britain, proposals to change defamation laws  have been suggested in a consultation paper.

As things stand, online publishers face possible lawsuits within a year of each time an article is clicked on, “even if it is many years since it first appeared,” says the BBC story.

But, says the document, the law could be replaced with a “single publication rule”, which would allow a single court action against defamatory material, to prevent “open-ended liability”.

“It discusses changing the limitation period for claims, such as extending it to three years after an article is published,” says the BBC, continuing, “Publishers of online archives and blogs might also be given a defence of qualified privilege — that a piece is fair and accurate and published without malice — against an offending article after a year time limit has expired.

“They would face action only if they refused to publish the correction on the offending web page.”

Claims of defamation

Interestingly, under ‘See Also,’ the BBC suggests readers of the article  cited above should also check out Free speech, libel and the internet age which deals with another lawsuit with p2pnet as the defendant, and which is slated to be heard next February —- four very long years after it was originally lodged.

Written by Ottawa law professor Michael Geist in July, 2006, it kicks off with, “The Rivoli, a popular Canadian music club in Toronto, Canada may seem like an unusual venue to consider internet free speech,” going on »»»

Yet later this week, it will play host to a fundraiser in support of P2Pnet.net, a Canadian-based website that is being sued for defamation for comments posted on the site by its readers.

The suit, launched by Sharman Networks’ Nikki Hemming, has attracted considerable international attention because of the parties involved — Sharman Networks is the Australian-based owner of Kazaa, the peer-to-peer file sharing service that last week agreed to pay the entertainment industry $100m (£53m) to settle ongoing litigation.

It also highlights the vulnerability of thousands of individuals to defamation lawsuits merely for providing access to other people’s comments.

Even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law

Both Sharman Networks and Hemming sued P2Pnet last spring, claiming that an article and accompanying comments posted by readers of the site were libellous.

Vigorously disputed

Jon Newton, the owner of the site, has vigorously disputed the suit, pointing to the need to protect free speech and to ensure that defamation laws cannot be used to stifle comment.

Sharman Networks recently dropped its claim, however the Hemming suit continues.

The case places the spotlight on the liability of internet intermediaries. The importance of the issue extends well beyond just internet service providers — corporate websites that allow for user feedback, education websites featuring chatrooms, or even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law.

The difficult question is not whether these sites and services have the right to voluntarily remove offending content if they so choose — no one doubts that they do — but rather whether sites can be compelled to remove allegedly unlawful or infringing content under threat of potential legal liability.

The answer is not as straightforward as one might expect since the law in Commonwealth countries such as the United Kingdom, Canada, and Australia varies depending on the type of content or the nature of the allegations.

Unproven allegation

In the case of child pornography, most jurisdictions do not require a site to remove content based merely on an unproven allegation. Instead, sites can only be compelled to remove such content under a court order.

What are the implications of free speech?

Copyright infringement claims are treated differently in various jurisdictions. Canadian law does not require a site to remove contested content.

Liability would depend on whether the site can be said to have authorised visitors to infringe copyright.

The Supreme Court of Canada has set a high threshold to determine when a party “authorises” infringement. Merely hosting content, even after being made aware of an unproven infringement allegation, is unlikely to meet that standard.

Other countries, most notably the United States, have implemented “notice and takedown” systems that provide intermediaries with a legal safe harbour provided that they promptly remove take down content upon notification.

Limited opportunity

The poster is provided with a limited opportunity to respond to the infringement allegation. The intermediary can choose to ignore the takedown request, though it faces potential liability if a court later confirms the infringement claim.

The role of judicial oversight and legal balancing for illegal and infringing content is essential, since it navigates the fine line between preserving free speech on the one hand and ensuring that harmful content can be taken offline in appropriate circumstances on the other.

However, as P2Pnet has learned to its chagrin, allegations of defamation are the exception to the rule.

Under the law in countries such as Canada, the UK, and Australia, intermediaries can face potential liability for failing to remove allegedly defamatory content once they have received notification of such a claim, even without court oversight.

Indeed, several recent cases in the UK and Australia involving Dow Jones, a US publisher, have sent a strong message that intermediaries ignore defamation claims at their peril.

As a result, many ISPs and websites remove content in response to unproven claims, even if they privately doubt that the content is indeed defamatory.

Legal risk

From the company’s perspective, there is no legal risk to remove the content, yet there is potentially significant risk for failing to do so.

Given how easily content can be forced off the internet with claims of defamation, the law creates a significant restriction on free speech.

Intermediaries are understandably reluctant to ignore threats of litigation, yet without a legal safe harbour that protects them from liability, it is likely that the number of questionable defamation claims will continue to rise.

Addressing the free speech issue would require legislative change.

For example, the United States enacted a law 10 years ago that provides broad immunity for intermediaries that host third-party content. That provision has since been used dozens of times to immunize ISPs, large companies such as Amazon.com, and small websites who could ill-afford to fight legal challenges.

A similar provision in the Commonwealth countries would protect sites such as P2Pnet, as well as the thousands of ISPs, websites, and bloggers, who are contributing to a robust online dialogue, but today find themselves vulnerable to lawsuits whose primary purpose may be to suppress legitimate speech.

A ‘sometime volunteer’

Before the Rivoli concert, I was on a roundtable panel with Michael Pilling as one of the speakers.

He was there because he, too, was involved in a defamation lawsuit —- brought by Crookes.

“Mr. Crookes is a Vancouver businessman and the President and sole shareholder of West Coast Title Search Ltd.  He is described in his factum as being a ‘sometime volunteer’ for the Green Party of Canada,” says a clip from Crookes v Newton on, which goes on »»»

It is his connection with the Green Party which is the subject of the various articles he claims to be defamatory.

Mr. Newton describes himself as a journalist.  His p2pnet website provides unrestricted access via the Internet. The website contains commentary on various issues, including issues involving free speech and the Internet.  After becoming aware of a defamation action Mr. Crookes` had commenced in May 2006 against a Mr. Pilling (who is alleged to be the original author of the offending articles found on openpolitics), Mr. Newton used his p2pnet site to distribute his article, “Free Speech in Canada”.  That article referred to Mr. Crookes` action against Mr. Pilling and the implications of such actions in terms of free speech for those who operate Internet forums.  As earlier stated, he created a hyperlink in his article to the Wayne Crookes article on the usgovernetics website and another hyperlink to the openpolitics website where the other impugned articles are found.  Mr. Newton, who did not know Mr. Crookes, did not reproduce in his own article any of the content of the offending articles, or comment in any way on their content.

Mr. Newton`s article came to Mr. Crookes` attention on July 18, 2006.  On August 18, 2006, Mr. Crookes sent an email to Mr. Newton at the email address provided by Mr. Newton on his p2pnet website requesting Mr. Newton to remove the hyperlinks to both the usgovernetics and openpolitics websites.  He received no response to this request.  On October 31, 2006, Mr. Crookes` lawyer wrote to Mr. Newton asking Mr. Newton to remove the hyperlinks on the basis that the sites contained material defamatory of Mr. Crookes.  Mr. Newton refused to do so.  He subsequently deposed that his refusal was based on his view that there was no need to remove them because they were “merely a hyperlink”.

As of February 1, 2008, the article “Free Speech in Canada” had been “viewed” a total of 1,788 times.  There was no evidence as to how many times, if any, the hyperlinks in the article had been viewed, and no evidence as to whether it was possible to obtain such information, and, if so, at what cost.

The summary trial was heard on August 29, 2008.  At the hearing, it was common ground that the trial judge could decide the issue of whether Mr. Newton was a publisher of the impugned articles on the basis of the materials filed.

Freedom of speech can vanish in the night

“The B.C. Court of Appeal has issued an important new ruling on the prospect of liability for linking to allegedly defamatory content,” blogs Michael Geist, adding:

“Crookes v. Newton involved Wayne Crookes, who has filed several Internet defamation suits (including one against me) and Jon Newton, publisher of P2Pnet.net.  A divided court upheld a lower court ruling that there was no publication in merely linking to content and therefore no liability.   The majority of the court ruled:

there is, in my view, no substantial difference between providing a web address and a mere hyperlink. Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.

“There remain several outstanding cases before the B.C. courts involving Internet-based defamation,” he adds, one of them being, of course, the case originally brought against me by Sharman Networks and Kazaa boss Nikki Hemming, and ultimately by Hemming alone.

Not only but also, at the Rivoli concert, I sang a song I wrote for the occasion »»»

Freedom of speech ain’t a God-given right
Your freedom of speech can vanish in the night
‘Cause if you let ‘em,
They’ll steal it away from you.
Then they’ll have you where they want you and they’re never gonna let you go.

Saying what you want to is the mother of all rights
But your freedom of speech can vanish overnight
It ain’t a gift you got to earn it
They’ll destroy it if you spurn it
If you can’t say what you’re thinking
You might as well not think.

People are still dying ’round the world to buy that right
If you want it you can have it
But it don’t come without a fight
And if you let ‘em. They’ll steal it away from you.
Then they’ll have you where they want you and they’ll never let you go.

Saying what you want to is your bottom line right
But freedom of expression can vanish overnight
It ain’t a gift you have to earn it
They’ll destroy it if you spurn it
If you can’t say what you’re thinking
You might just as well be dead.

Providing back-up were my friends Neil Leyton and Dennis O’Toole, who also wrote songs for the concert.

Click here to read the lyrics.

Stay tuned.

(Cheers, Marc)

Follow p2pnet on Twitter.

antiquated libel laws – Canada, a haven for libel lawsuits, October 27, 2006
BBC – Plan to update libel law for web, September 16, 2009
Michael Geist – B.C. Court of Appeal Rules No Liability For Linking, September 16, 2009

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This entry was posted on Thursday, September 17th, 2009 at 1:11 pm and is filed under P2P, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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