p2pnet view Freedom | P2P:- “Jon – you have a similar court case with Wayne Crookes I think.”

That’s p2pnet regular Paulus in Germany in his Reader’s Write to my re-post of Mike Masnick’s Techdirt description of how he’s been ordered to shut his site down because of something someone doesn’t like.

Yes, I have a(nother) court case looming. But it’s somewhat different from Mike’s.

Wayne Crooks (right), the owner of West Coast Title Search in Vancouver, says hyper-linking to a story is the same as publishing it.

I’d linked to an item he didn’t like and when he asked me to take it down, I refused.

He went legal and the case eventually landed before BC Supreme Court judge Stephen Kelleher, who ruled linking is not the same as publishing.

Crookes was given permission to appeal to the Supreme Court of Canada, and the landmark case is now slated for December 7 in Ottawa.

The decision will be not only be precedent-setting, it’ll quite literally decide whether or not freedom of speech in Canada is a genuine, inalienable right, or just an empty phrase.

Hird v Wood

Authorities on the subject of hyperlinking “are few and far between and provide little guidance“, says a recent post in the Guardian.

“The case of Hird v Wood, decided more than a century ago, is often cited by legal commentators as applicable by analogy — it featured a man who sat by the side of a road all day smoking a pipe and pointing to a placard on which a defamatory statement was written by an unknown author”, it says, going on >>>

The court of appeal decided that this conduct was tantamount to publishing the libel.

The supreme court of British Columbia in Canada, using a different analogy, in a libel case brought by political activist Wayne Crookes, arrived at the converse conclusion.

Hyperlinks are like footnotes, it said, they draw attention to other people’s content, which readers may ignore and the publisher of the link is not liable for pointing in the direction of defamatory statements.

The post linked to in the Guardian quote above comes from 5RB, and it says >>>

The Supreme Court of British Columbia has refused to find a man who posted hyperlinks to allegedly defamatory articles responsible for the content of those articles.

Political activist Wayne Crookes and his company brought proceedings in respect of four internet articles which they say constitute a smear campaign against them. Jon Newton published an article on the website p2pnet.net about the case and its implications for internet forums, which included links to two of the articles complained of. Crookes and his company sought summary relief against Newton.

Dismissing the action, Kelleher J held that publishing a hyperlink does not constitute republication of the content available by following the link. The links at issue were akin to footnotes, which directed readers to material from another source but did not comment on their truthfulness or accuracy. The Judge said that the case might have been different if Newton had endorsed the linked material, such as by writing “the truth about Wayne Crooks is found here”, in which case he might well have been liable. He also held that the Plaintiffs had failed to prove publication and could not rely on any presumption.

The issue of liability for defamation for publishing hyperlinks has not been tested before the English courts, but it may be that a different approach would be adopted, following Hird v Wood (1894) 38 SJ 234, in which a man was found liable for pointing at a defamatory placard. Context might be capable of stripping the hyperlinked content of its defamatory meaning, but that is of course a separate issue.

Appeal

Representing me and, therefore, you as well, at the Supreme Court, will be well-known Vancouver media lawyer Dan Burnett.

He’s providing his time and expertise for free, but there’ll be out-of-pocket costs for us both such as travel to and from Ottawa, accommodation, associated legal expenses, and so on, and we’ll need to raise around $5,000 to cover that.

I’ll be launching a fund raising appeal at the beginning of next month. Funds will be held in escrow at Dan’s law firm, and I’ll be providing an account of exactly how they’re spent.

Anything remaining after the case will go to the Make A Wish foundation of Canada.

Are there any coders out there who can help me with a way to show deposits going into my PayPal as they’re posted? I’m thinking of something like a temperature gauge. If you can help with that, please contact me here – p2pnet @ shaw dot ca.

I’m also organising a benefit concert here on Vancouver Island, where I live. Five local bands and performers have already agreed to take part.

For now, below is an item on the case I published in April.

____________________________________________________

As things stand, nothing happens in isolation online. But Wayne Crookes, ex-Green Party of Canada organizer and financial backer, wants to change that.

He says linking to an article is the same as publishing it and that linking to an allegedly libellous article can, therefore, be the same as defamation.

He says that’s what happened to him and so he wants to freeze the net solid, turning it into a sterile, featureless, colourless landscape.

He wants the threads which bind the World Wide Web, cut.

And he wants Marshall Rothstein, Rosalie Silberman Abella, Louise Charron, Thomas A. Cromwell, Marie Deschamps, William Ian Corneil Binnie, Beverley McLachlin, Louis LeBel, and Morris J. Fish (below, left to right) to wield the knife.

They’re the members of the supreme court of Canada, the “final court of appeal, the last judicial resort for all litigants, whether individuals or governments”, it says, declaring, “Its jurisdiction embraces both the civil law of the province of Quebec and the common law of the other provinces and territories.”

Their word is law. Literally.

They, and they alone, will soon have the mind-boggling responsibility of deciding whether or not Canada will be thrown back to the communication dark ages when the dissemination of information and news was almost entirely in the hands of corporate providers.

Not at all coincidentally,  many (most?) of these companies are still owned by the same entertainment industry cartels which are tying up governments around the world with their plans to gain exclusive control of how online content is distributed, and by whom, via their secret ACTA (Anti-Counterfeiting Trade Agreement), and its associated Three Strikes law.

An impenetrable quagmire

“Canada is free and freedom is its nationality“, former Canadian prime minister Wilfred Laurier once said.

The nine Canadian justices will rule on what could justifiably be described as the most important freedom of speech issue in Canada in modern times.

They’ll decide if the free-flowing internet will be turned into an impenetrable quagmire at the behest of Wayne Crookes, the owner of a small British Columbia company called West Coast Title Search.

Without links, the net would literally disintegrate. Without them, Google, Yahoo, et al, would immediately be out of business, anybody or anything which depends on being able to quickly find information would suddenly find themselves back in the era when manual searches taking days and weeks were the only way to ferret out information.

Governments and their agencies wouldn’t be able to function. Companies would have to rely on internal links, and there’d also be massive copyright issues: if you’re publishing when you’re linking …

And so on. It’d be a mess.

‘The chill has already set in … ‘

When Crookes launched his lawsuits, named with me were Michael Geist, Google, Wikimedia, Pbwiki, Yahoo, MySpace, Openpolitics.ca, Domains by Proxy, Michael Pilling, Hayley Easto, Kate Holloway, Craig Hubley, Frank Cameron, Catharine Johannson, Gareth White and anonymous persons. However, my case was the only one in which the charge was alleged defamation by linking.

The issue was, and still is, vitally important to free speech on-and offline, and when it broke, it should have been headline news.

But then, as now, it was all-but ignored by the editors and publishers who control Canada’s mainstream print and electronic media. Presumably they feared they, too, might find themselves targeted by Crookes. So they decided cowardice was the better part of valour.

This time around reporting has so far been almost exclusively in the hands of two wire services, the Canadian Press and Canwest News Service.

Now CBC is covering it”, says a Reader’s Write to my earlier post on the news, going on, “Late as usual, but better than not at all.”

But not much better. It uses the CP story. “I just did a bit of reading up on the case (not a lot out there, the chill has already set in – as most sites are veeeery cagey with respect to what they will say about either the case or Mr. Crookes himself)”, says a comment post.

Actually, they’re not saying anything. It’s the same, lame Canadian Press story that’s being regurgitated by what seems to be half of the Canadian mainstream media. Others — the minority, unfortunately — are using the more detailed Canwest News Service item.

“Well CBC probably didn’t post the links to the websites in question because they are waiting for the result of this ruling”, says another CBC comment, “because of course if CBC says what sites they are there could be a lawsuit against them .”

The burden of proof

“Free speech isn’t a global constant”, says Slyck from across the border, going on >>>

In Canada, defamation laws follow closely English law. In other words, much of the burden of proof falls on the defendant. There’s no “actual malice” burden that a complainant must meet, and there’s no Section 230 law that prevents publishers from being held responsible for potentially defamatory material posted by a third party. That lack of freedom put Canadian publication p2pnet at legal odds with a Vancouver businessman who took issue with hyperlinks posted by p2pnet.

Says All Headline News, also in the US >>>

The federal Supreme Court of Canada will hear a landmark case that has the potential to dramatically redefine libel and make Internet users think twice before posting a link on their website.

The lawsuit involves former Green Party campaign manager Wayne Crookes, who is appealing a British Columbia Supreme Court decision in 2008 that favored a Canadian website. Crookes claims posting a link to a portal that has defamatory statements is tantamount to the publication of that material.

British Columbia Supreme Court Justice Stephen Kelleher dismissed Crookes’ lawsuit in 2008, ruling the links were just footnotes or references to a portal and did not comprise an act of publication. Crookes has filed several libel lawsuits against some members of the Green Party, Google, Myspace.com and Wikipedia.

Crookes claimed he was defamed by four articles on the Internet on the Websites of www.openpolitics.ca and www.usgovernetics.com, which were eventually linked to the portal www.p2pnet.net owned by Jon Newton.

Newton said he was not interested in the issues involving the Green Party of Canada, only in free speech and the Internet.

And ultimately, according to crath (80215) in a Slashdot post, it’s all my fault in a very personal sense.

“The article, nicely linked , in the Montreal Gazette [story] says that the challenge is not attempting to overturn the concept that links are akin to footnotes”, says crath, going on, “Rather, that when it was pointed out to the poster that the link pointed to defamatory material, that the link wasn’t taken down — and so, the poster’s inaction is what is at issue.

Head over to openpolitics.ca for detail on the lawsuits, including p2pnet’s allegedly defamatory linking.

Post it on slashdot, digg it, tweet it …

For now, please spread this news as far and wide as you can. Don’t worry about linking back to, or quoting, p2pnet. Add to this post, take parts away, re-write it but get this on as many online forums as you can.

Post it on Slashdot, Digg it, Tweet it, put it on Reddit, boing it on Boing Boing — everything you can think of.

The appeal is slated for December 7.

For now, we need to do what the mainstream media can’t, or won’t, do —- get started on creating a body of online material to reflect the importance of this case not only to Canadians, but to everyone, everywhere.

Because it doesn’t matter where you are, the supreme court of Canada ruling will bounce, and bounce and bounce, impacting freedom of speech around the world.

Stay tuned.

Cheers! And thanks …
Jon Newton

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August, 2010

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This entry was posted on Friday, August 27th, 2010 at 10:27 am and is filed under Freedom, P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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