p2pnet v Sharman: analysis
p2p news / p2pnet: As the world now knows, Kazaa owner Sharman Networks and Kazaa ceo Nikki Hemming have launched a libel suit against p2pnet and editor/publisher Jon Newton.
In The Register, San Francisco attorney Kevin Fayle takes a look at the situation.
Meanwhile, “in the same way that I have faith in my online friends and neighbours, I also have more faith in my fellow Canadians than I do in the ability of Sharman and Hemming’s attempts to stomp p2pnet, in the process stifling freedom of speech here, and gaining a weapon for it and other similar corporations to use elsewhere,” says Newton.
“That’s why I’ll be having this case tried before a jury.”
Definitely stay tuned.
And meanwhile >>>>>>>>>>>>>>>>>>>>>>>>
Kazaa’s P2P libel suit threatens to mute Canadians
By Kevin Fayle – The Register
A fresh lawsuit making its way through Canadian courts threatens to result in severe restrictions being placed on what internet users can post to message boards. It just might enhance corporate abilities to strong-arm ISPs and authors, too.
In a strange new turn of events in the Kazaa saga, Sharman Networks and its CEO, Nikki Hemming, have filed a defamation suit in the Supreme Court of British Columbia against P2Pnet operator, Jon Newton, his ISP, and four as-of-yet-unnamed users of the site. Apparently, Hemming and Co. are hopping mad over a few of the articles and postings on the pro-P2P site concerning Hemming’s recent Australian court appearance, during which she denied that she sold off a choice piece of Sydney real estate for the purpose of keeping her assets away from record companies out for restitution.
The content that has so unforgivably bunched Ms. Hemming’s knickers contains very little that most people would even think was inappropriate, much less defamatory. [We can't link to the comments in question for obvious reasons, but this story contains a copy of the original complaint, which does point to the P2Pnet articles and comments.]
Ah, but this is Canada – land of hockey, Molson beer, and courts willing to shell out to almost anyone who feels their personal dignity has taken a hit because of someone else’s nasty words. If the Sharman-Hemming duo can convince a court that the writings have tarnished their reputation, it will cost the authors a pretty penny and further limit what Canadians can say on the Net. Here’s why.
Let’s take a brief look at the basics of Canadian defamation law. A successful plaintiff must prove three essential elements in a libel case: First, that a statement was published and made available to a person other than the plaintiff; next, that the statement referred, directly or indirectly, to the plaintiff; and finally, that the statement was false and would discredit the plaintiff in the eyes of a reasonable person.
The statements made on P2PNet definitely satisfy the first two prongs; the question is whether or not the court will find that the statements were false and damaged the plaintiffs’ reputations in this case. Given the current state of Canadian defamation law, it may be safe to assume that the answer is yes. The B.C. Supreme Court recently determined that placing pictures of teachers on a web site under the subject heading “B.C.’s Least Wanted” constituted an act of defamation, so it’s clear that this is a court that doesn’t want people saying bad things about each other.
The articles that Newton published were essentially extended quotations of the Australian Associated Press’ account of Hemming’s court appearance. As such, the articles would not count as defamation, since there is a qualified privilege to report accurately on court proceedings. Since it is generally reasonable to accept the Associated Press’ reporting, Newton didn’t act recklessly in putting the quotations on the site.
Where he may have gone astray, however, is continuing on to quote a comment to his site that accused Hemming and Sharman of hiding money from the Australian government. That comment came from a P2Pnet reader and made its way into the body of the text rather than just the comments section. In the lawsuit, however, Sharman and Kazaa point out four comments – the kind you might find on Slashdot, Yahoo or anywhere else – that make up the majority of the lawsuit, including the one Newton quoted. It’s these items that will put Canadian internet users to the test.
Now, most Netizens (the people to whom the statements were actually published) know that anonymous web postings basically amount to rants and raves and should not be taken seriously for any purpose whatsoever. The “reasonable person” who factors so heavily into Canadian libel law does not seem to have grasped this concept, however. For this person, a statement on an Internet message board carries just as much weight as a statement made in a newspaper or magazine. And a statement that accuses someone of criminal conduct will count as defamation so long as that person or corporation can prove that the statement was false and damaged their reputation. Canadian courts jump at the opportunity to find that reputations have been damaged. If Sharman and Hemming can go the distance and prove to the court that they haven’t actually hidden any money from the government of Oz, Newton and the anonymous poster will likely have to fork over cash for suggesting that Hemming and the company are crooks.
Given the likelihood that Sharman and Hemming probably don’t want to go into the details of whether or not the statements were false, and the fact that the defamation charges against the other statements mentioned in the complaint are rather thin, the main purpose behind the action might actually be to discover the identity of the posters – after all, one of the posters accused Hemming of lying about her age, which she may have taken a little personally. That would essentially make this case a Strategic Lawsuit Against Public Participation (SLAPP).
SLAPPs involve a corporation suing over speech critical of the company. The charges (usually defamation) don’t have much weight behind them, and the real purpose of the suit is generally to intimidate an ISP into removing the content, or to find out the identity of a poster so the corporation can terminate an employee, end a business relationship, etc. British Columbia, like many other jurisdictions, doesn’t have an anti-SLAPP law on the books, so corporations can continue to use these suits to stifle free participation in ongoing public discourse with no deterrent other than the minimal threat that the weaker defendant will sue them for abuse of the judicial process.
In this case, the strategy – if that is the strategy – has been working well so far. P2PNet has removed the articles and postings, and the identities of the posters will probably come out in pre-trial discovery – assuming that the postings can be effectively traced. That means that Canadians who have something to say about prominent corporations and their executives may want to think twice before posting it on their favorite website.
Canadians will want to keep their eyes open and mouths shut as this case proceeds.
[Kevin Fayle is an attorney, web editor and writer in San Francisco and a graduate of the University of California, Hastings College of the Law. When he's not pointlessly running in circles around Golden Gate Park, he scrutinizes and analyzes U.S. Federal case law for the frequent signs of the Second Coming. He keeps a close eye on IP and International Law issues.]
NOTE: p2pnet is currently being sued for alleged libel by Kazaa owner Sharman Networks and Kazaa ceo Nikki Hemming. In the interests of freedom of speech, we’re determined to fight this case before a jury but we don’t have the financial or legal resources to meet them on level ground. Any help you can give will be very gratefully received. Please go here for more.
May 23rd, 2006 at 9:16 pm
Well at least an analysis from someone who we can see who it is.
Doesn\’t look good for the posters identity – it is obvious that this will come out in discovery.
I think the statement of keeping mouths shut will apply to everyone besides Canadians on this one!
May 23rd, 2006 at 9:20 pm
And there’s something else: as far as I’m concerned, an anonymous post is the same as a confidential source. I don’t have to like a post, or even agree with it. But I believe that as an honest and responsible human being, I do have to safeguard the poster.
http://p2pnet.net/story/8855
May 23rd, 2006 at 10:23 pm
I see this:
Hemmings sold a home and sent the proceeds to a remote place. Someone (A) said her motive was to hide the money from the government or for the purpose of asset protection. Hemmings (B) says that was not her motive.
So far all we have is an opinion of A as to what was a motive and a denial by B that the motive was one in particular (to protect assets from the arm of the law).
Here we have two problems, opinions and motives:
Opinions are neither true nor false as they are not facts.
Motives are usually never what they seem or what is stated.
An opinion.
May 23rd, 2006 at 10:32 pm
troll troll troll troll troll troll…
May 23rd, 2006 at 10:45 pm
I don’t think he’s a troll. he’s probably a lawyer or lawyer wanna be with a chip on his shoulder about opinions not based correctly on law and insults and degrades anyone who thinks contrary to him/her………
Hey I know this guy from another site dealing with the same issue I used to belong to and loved flaming people…. Mr___. Ahem, cough.
Rick
May 23rd, 2006 at 10:53 pm
Correct me If I’m wrong (and I’m sure someone will) but if Canada’s privacy laws are very strong, and their libal laws are also very strong, the two would seem to collide in this case wouldn’t it?
Also, if one of the posters were in another country and Jons server is in another country wouldn’t the server operator be within their rights to deny a courts request to give up polster information? Even if they did would the Canadian courts be able to sepeaonea or Hemming bring charges against that individual?? what does anyone think?
Rick
May 24th, 2006 at 12:36 am
This case has to be about locating the original posters, thats why it has been commenced in Canada. If it had just been about suing p2pnet Hemming would have been within her rights to commence the action in Australia after the High Court, Dow Jones v Gutnick decision which held that defamation in an American publication caused harm where it was read – ie. Australia.
So who might the original posters be?……
who hates Sharman/Hemming the most?……
RIAA/ARIA????? just speculation but certainly possible
as for Canadian privacy law – yeah its strong – certainly much stronger than Australia for example where ISPs can give out details on the ‘mere suspicion’ of illegal activity; but Canadian privacy laws are not infallible and CRIA only failed in its bid because of a lack of evidence – something that doesnt appear to be in dispute here….
May 24th, 2006 at 12:37 am
Is it possible that Nikki Hemming is nothing more than a big fat (wasn\’t it reported that she\’s gained some weight) liar? Is it possible that Sharman Networks is trying to get one final paycheque now knowing that they will need the funds since they are tied up in several court cases? Is it possible that that Nikki Hemming is upset that the record labels destroyed the fasttrack network by flooding it with fakes and she\’s now taking it all out on p2pnet? Could it be that she downloaded a tune and heard, \”what the fuck do you think you\’re doing?\” and then thought to herself, \”how did that guy figure out I was 40? I must find out who he is.\”
I wonder.
May 24th, 2006 at 12:48 am
They are used to shut people like you up.
I don’t agree with what you say or your reasoning, but watch what you write – if someone doesn’t like it they may decide to come after you just for the hell of it.
May 24th, 2006 at 2:24 am
Jon going to be sued again becuse you aleged that Nikki Hemming has gained a bit of wieght.
May 24th, 2006 at 3:05 am
I am not at all a troll nor am I defending Nikki Hemming, but I would like to say that any comments in relation to her weight are petty and in poor taste. As if women in this world dont have enough to worry about with people constantly making reference to body image. I dont of course think it should be a topic for a law suit but nor do I think she should have to tolerate those kind of personal insults. Dislike her for real reasons, for pushing Morpheus off fast tracks or for the spyware or cashing in her house to pay for the lawsuit but shit dont bag her about her weight.
I commented to someone once that theres a saying that ‘in Cyberspace no-one knows you’re a dog’ and I said that I had adapted it to be ‘in Cyberspace no-one knows youre a woman’ – they were genuinely surprised when I said that I deliberately use gender neutral names when I contribute on line because I reckon I am treated better when people dont know my sex….
people like you just reinforce this problem
May 24th, 2006 at 3:47 am
I am not a supporter of Nikki Hemming. I do agree with the above post. To post that in your opinion is indeed your opinion, be it reflected from some news post or how ever you came by the idea. Personal insults don’t really fit. You gotta beef with her person or who she works for then lay it out. It comes off as petty to attack something that doesn’t really affect you in any manner. It is doubtful you or I will ever meet this woman.
I don’t agree with these SLAPP methods. It seems that corporations think that appearance is everything in business and this is a poor way to bring silence on critizim, how ever richly it may or may not be deserved.
May 24th, 2006 at 5:46 am
“If Sharman and Hemming can go the distance and prove to the court that they haven’t actually hidden any money from the government of Oz”
They don’t have to prove squat. It’ll be up to the Doe’s, Roe’s and Jon to defend the accuracy of the statments made. That is the beauty of this from Hemming’s perspective, she can sit back and relax, while the defendents sweat it out trying to prove what was posted was true.
May 24th, 2006 at 10:48 am
I read those posts.
They are opinions.
They are presented as opinions.
If they were presented as fact, that might be more of
a reason.
My opinion is that this is a bullshit suit.
That is neither true nor false. It is what I believe.
My opinion is that by bringing this suit, Nikki Hemming has shown
that those statements are probably true, since she fears them
so much. You know, “Thou dost protest too much”.
That is my opinion, not a statement of fact, or presented as fact.
I urge everyone to use the google cache and read those statements she fears, and form your own opinion, and VOICE IT loudly at every possible site, not just this one. Voice your opinion, and be sure to stress it’s your opinion.
May 24th, 2006 at 11:26 am
“Hemming would have been within her rights to commence the action in Australia after the High Court, Dow Jones v Gutnick decision which held that defamation in an American publication caused harm where it was read – ie. Australia.”
Which means that anyone who writes anything on the Internet should know what are the difamation laws and jurisprudence of every country and their jurisdictions of the world that has Internet. But that is not enough to prevent a prevailing lawsuit, as there are places in the world that are the judicial equivalent of towns with speed traps where the police and the judge are in cohoots to extract money from every passeby.
Yes, there are places where the local police, lawyers and judges are in cohoots to extract money from every sucker they can. Wait until they find out what a beatuful scam can be made with “difamation”.
May 24th, 2006 at 11:55 am
Interserver is based in New Jersey so that would put it in the US .
May 24th, 2006 at 4:03 pm
So what if the people that posted were not from Canada at all? Or using an Onion Router proxy? What a joke.
May 24th, 2006 at 5:29 pm
Your missing the point.
It’s not up to us to decide if they are opinion, gossip, heresay, fact or the gospel according to Jon (that’s a joke btw). It’ll be up to a judge who must work within the confines of the law and the Libel and Slander Act. There are rules of engagement and the Roe’s, Doe’s and Jon will have to follow them, just as Hemming’s will. The american lawyer who wrote the article was wrong about who must prove whether the statements are true or not … IN COURT.
I also think his analysis of the reasonable man is off kilter but that is another discussion entirely.
May 24th, 2006 at 7:28 pm
As an American I will preface any comments like this with ‘this is just my opinion’ as such I’m NOT suggesting any comment following this preface is true which is all that is required in America to show my comments are not libelous. In fact I live in a fairy-tale and nothing I say should be taken seriously.
——-*Sad times when we need to start adding those preface comments but I guess I should start getting used to it*
Of course, this leaves another couple questions in the air now doesn’t it. While Jon is a Canadian, what if the 4 Doe’s in question are Americans, or frankly, from any other Country than Canada?
If the Doe’s in question are Americans then would American law prevail over their posts? If they’re Russian, would Russian law be held against them? etc etc
The internet isn’t the same venue as making public statements – where you’d actually be located where your listeners are.. This wasn’t a public speech where some person was talking, then another came out of the audience and spoke and so on, which then you could accurately apply the local laws if any were actually being violated, on to the people in question – this is the internet and it’s coming time that all Nations come to a standard, agreed upon law that applies globally – regional laws make no sense relative to the internet – it’s just plain silly! No – not a law for everything but definitely a law for something trivial like libel.
This case isn’t going to be easy for Kazaa to win. If they DO get the IP addresses, their attorney’s will contact the IP’s respective ISP’s and request via subpoena their identity – but, should the users be outside Canada then Kazaa and the court’s in Canada will meet up with External laws and protections. Though if a publisher of a paper newspaper can hold their sources as confidential I see no reason why the Jon and his Host should be forced to reveal IP addresses in this case. There was no risk to National Security, which in the US seems to be one area they will not allow a publisher to hold private their ‘source’ but I don’t know how Canadian law treats them.
This battle is going to be long and hard – it’s not cut and dry – I have a hard time understanding why Kazaa would take such risks of filing a lawsuit in the first place when it only made to have the posts stand out more – globally – when otherwise the story, which I didn’t even read before the lawsuit was filed (through using a cache I found on a search engine – since it was deleted before I had known about this happening)…It makes it feel like the allegations had some area’s of truthfulness or Kazaa would have simply ignored it and counted the posts off as worthless…but I guess as the case progresses we’ll all know one way or the other. It seems like an ill choice of lawsuits… by the sound of it the LAME Canadian libel law needs re-written, so perhaps this is a good time to get that done.
***Again, I’m living in a fairy-tale, so don’t listen to my opinions above as anything more than that – no fact’s are above and I know nothing factual about the case or anyone involved to base an opinion.***
Just my (opinion) 10 cents,
_-Jile-_
May 24th, 2006 at 8:11 pm
_-Jile-_
Will you sue me if I use your disclaimer on all of my future posts ?
Dreddsnik
// looks like you just may have started something …
May 25th, 2006 at 12:25 am
The question isnt so much as to whether a post is libel as it is whether Jon can turn a post into a story and therefore make it look like a fact. Thats what looks like they are P\’D about! Thats not hard to see. Some posters calls you a %$^%$ and then the \”journalist\” makes a story about what a (*&^*)&^ you are! Fair or not Fair? Thats the real question!
May 25th, 2006 at 1:26 am
The story that included the Reader’s Write was more of a “this is what the community is thinking” kind of story.*
* The post above is the opinion of the author at the time of writing. It should not be read as fact. p2pnet, it’s owners and/or editors did not pre-approve, edit or comment on the ideas or expressions contained within it before it was posted.
May 25th, 2006 at 11:31 am
-= Disclaimer:This is just my opinion. =-
– As such I’m NOT suggesting any comment following -
– this preface is true. In fact I live in a fairy-tale -
– and nothing I say should be taken seriously. -
“The question isnt so much as to whether a post is libel as it is whether Jon can turn a post into a story and therefore make it look like a fact. ”
No, actually.
Do you read ?
Read the complaint, try to understand it, then, come back
and make an intelligent comment.
It looks much more like Sharman desperately wants the identity of one of the Doe’s. And …..
You are a %$^%$ and a (*&^*)&^
May 25th, 2006 at 12:40 pm
Yep -Jile- is on track here…
Jile said: by the sound of it the LAME Canadian libel law needs re-written
This is in works, BC’s laws are behind the times compared to other cdn prov’s. Its not all of Canada, Just a few prov’s, BC being one of them.
Also, there has been cases where a UK court held a CDN responsible for libelous writtings on the net. CDN court refused to honor the UK court ruling of monetary compensation on behalf of the cdn person. Mind you, that person will probably be picked up if ever he steps foot in the UK again…. I found on a google one other similar case.
Hence the reason (My thinking) that Jon is being sued. The host and Doe/Roe’s may get tossed on jurisdiction. Jon being in the libel friendly prov of BC could get nailed alone on it. So kaza protects their lawsuit in the event of jurisdiction by including Jon as the publisher.
Since they say he is a publisher, Jon has the right to conseal identity (including his own) when writing in Canada. Anonymous publishing is allowed. But, this right is not afforded when there is libelous material. Which is what they claim the doe/roe did.
Maybe i am completely wrong here… dunno.
But lets look at a scenario. Porn servers. (my g/f started one years ago and we are familiar with these laws in case you are wondering <schwing>)
In many states and in many CDN prov’s running a porn site has alot of legalities or is not legal. So most porn servers are run out of porn friendly states. The law tends to follow the LOCATION of where the material is located (ie. the state where the porn server is). Not who owns the material or runs this material in a lawfull manner. Many can’t be prosecuted or held liable if they live in ontario (for example) since its the laws of where the server is located that come into play.
K, now lets look at a case in Ontario in which an american (washington post i think it was) posted material the Ontario person found libelous. The courts found that the suite could go ahead because the material was available online in Ontario. But later on appeal it was found out of jurisdiction.
back to the porn now…
This jurisdiction of the server making the published material available to all has to be a deciding factor. It is in Porn server cases.
If anyone doubts this, google the laws and porn servers.
So i think Jurisdiction is the thing the plaintiff’s are most worried about. I do think Jon has to exploit the fact of the jurisdiction to the best of his capabilities… even if he decides to go on appeal afterwards.
If server jurisdiction is not observed, this would open a can of worms for all BC people who do things (like porn) on american servers where its legal. Is BC going to round up all people in its provence for doing what may be illegal in BC but not in certain states where its legal to have certain things on the server (in that state)?
Libel, porn, not the same. But the server issue is.
Sure Jon is the BC writter who published material to which an anon poster replied to. Jon has to respect the laws to where the server is located and to which he publishes to. This would have more standing on kaza’s case IF the server were in BC.
Location location location…. very important factor. For all I know Jon publishes for the american public, not the cdn public.
May 27th, 2006 at 8:12 am
“Just becuase it’s “Law” doesn’t make it right.”
ahh the tyranny of semantics.
You’re still missing the point.
Regardless of whether you believe the law (or the application of the law) is fair, just or reasonable – it is “the law” which has rules people must follow. Without those rules we would have anarchy. The rules say Jon must prove what was said was true. The law isn’t asking whether what Hemmings did was “fair” and if you notice in my previous comments I didn’t either. The judge can interpret the law and decide if Hemming’s case is frivolous (or not) based on the rules and go from there.
BUT my initial point, which you seemed to have completely glossed over, was about The.Rules.Of.The.Game, NOT the FAIRNESS of the game.
I don’t know why you continue to debate a simple point I made … unless you like arguing on the net and you know what they say about people who like to argue here … its kinda like being in the special olympics, even if you win your still retarded
May 27th, 2006 at 11:14 am
is John Newton a runt? Maybe not and maybe we’ll never meet him but is there a need for this discussion or the assertion/question. I doubt this post will stay up any longer than any other post that JOHN has taken down flaming his lack of wieght his view of free speech is he is free to profit from gratituous offensive personal gibes at someone elses expense not his own
August 13th, 2006 at 3:54 pm
If one can go after a blog as merely a filter site for others to post/rant/slander through rather than recognize it as a publication, the blog itself is liable. Hmmm. If this should be as Hemming is stretching it to be, all online postings whatever the name are the blog site’s postings.
Now we need to clearly define a blog and isolate it specifically from all online activities.
If not…
Kazaa should then be held responsible for the “postings” there too. The network is set up by them and their postings are files. To argue that the physical locations separate a P2P from a blog is bogus. So the company hosting the blog service is responsible for the blog content as all virtual or actual sites or networks should be.
Blogs will change…
Blog postings will have to be setup so that the poster “owns” the space, where ever it is physically. This way a blog becomes similar to Kazaa network and even what we can consider a virtual network. Now all postings will be made by unknown owners in their site. File downloads will be available as well as the posting at these sites if this formation is forced.
Hemming is after the developing concept of the blog itself. It is bigger than P2Pnet. She is just trying to foul on someone for a bigger goal kick rather than play with the rules.
Hemming is sitting on a Kazza like network whereby the blog files become a posting like a file on Kazaa except they are tied to a mother blog through a software like Kazaa. This way the blog postings are up when the poster is “online” and down when they are not connected to the network unless the files are “shared”.
This is not a bad concept whereby you do not have to pay a blog service but must buy into the software. So how do you compete? You hold the blog services responsible for what is posted on their physically controlled space.
ferrel1