p2pnet.net News:- I’m just back from the August 5 Toronto Freedom of Online Speech and benefit concert at the Rivoli, and it’s going to take me a while to put it together in posts.

And it’s interesting to see Canada isn’t the only country suffering from the actual or threatened repression of our ability to say what we’re thinking, or to see what we want to see. Catflap sent me an email pointing to this article in PC World.

“Freedom of speech online is under its fiercest threats in a decade because of two proposals in the U.S. Congress,” it has the Center for Democracy and Technology (CDT) saying.

“Free speech online is facing some of its most serious assaults” since the Child Online Protection Act (COPA) was passed in late 1998, declares CDT executive director Leslie Harris.

And things are far worse in Canada .

The benefit came about following the libel case launched against me by Australia’s Sharman Networks, owner of the p2p application Kazaa, and Kazaa ceo Nikki Hemming.

Sharman has ostensibly backed out, but Hemming is continuing and if she wins, it’ll open the door even wider for lawsuits against Canadian bloggers and ‘forum shopping’ (see Burnett’s statement below).

The freedom of speech benefit was organized by Toronto indie musician Neil Leyton, who’s also the owner of the indie label Fadingways Music and he and I spent most of Friday (August 4) talking to people at CIUT 89.5 FM (University of Toronto) and CKLN 88.1 FM (Ryerson University) radio, as well as CHUM Radio.

We’ll be running mp3s of all three interviews as soon as we have them. We’ll also be featuring the full Freedom of Online Speech panel discussion, which is to be aired in full on CIUT. And there’s a ton of other stuff, including video and audio of the concert which is currently being put together by Canadajam’s Wenda Atkins.

She and her significant other, Steve, spent the evening making sure you’ll get a chance to enjoy the amazing (and they really were amazing) performances by Kobo Town, Neil Leyton, Lindy, Aceface and Dennis O’Toole. And with Neil and Dennis there to cover my mistakes, I also did a song I wrote for the occasion.

For now, it was great to physically meet Tina Siegel (ladies first ;), Rob Hyndman, Neil Leyton, Phillip Smith, Russell McOrmond, Michael Pilling and Jason Young.

They did it all.

And during Saturday, we also collected enough signatures on a Freedom of Speech petition (see below) that’ll be handed in to parliament.

For now, at the panel discussion I read out statements from CIPPIC, BC media lawyer Dan Burnett, and Jason Munning of Ten Mile Tide. And I also read out a section from Michael Geist’s recent column on the same subject.

Below are the three statements.

Cheers! And all the best …
Jon

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Dan Burnett

Some might accuse me of exaggeration when I say that Canada’s libel laws are currently the most outdated and repressive in the English speaking world. I say it is no exaggeration. Let me explain.

The USA and the Commonwealth both inherited the English common law of libel. That law is of ancient origin, dating back to an era when the treason laws forced great literary figures to write under pseudonyms or in allegory to avoid persecution.

The law of libel long predates the internet and the Charter of Rights. The many ways it is offensive to free speech include its presumptions that a person’s words are false and that the words cause damages without requiring proof, and it admits of no excuse where a writer took reasonable care.

In the USA, the need to change the law to protect free speech has been recognized over the past 50 years, resulting in jurisprudence which altered the law. In cases involving speech about public interest issues or public figures, it now requires proof of falsehood, proof of damages, and proof of fault, meaning at least negligence and sometimes malice.

The defense of fair comment, which under English law requires proof of a number of complicated elements, was reduced in American jurisprudence to the simple concept that there are no “false” opinions. Therefore, if a statement is found to be one of opinion, the case is dismissed without inquiring further.

What about the Commonwealth countries? In Australia, New Zealand and England, the courts have explicitly recognized that the traditional law of libel infringes on free speech too much, and have taken the approach of recognizing as a new defense, a special privilege for speech on political or public interest matters even where the report contains a falsehood, if the writer acted reasonably in all the circumstances. In England, they call this the Reynolds defense. Canadian courts have paid some lip service to the Reynolds defense, but have not authoritatively declared it to be part of the law of Canada.

Until reform comes about, we in Canada remain stuck with essentially the antique and unmodified law of libel. As a result, plaintiffs can and do to bring their cases in Canada. It’s called forum shopping. If a plaintiff can find a publication in Canada, which is pretty easy in the internet age, and convince the Canadian court to accept the case, they get the advantage of having their case heard under legal rules that favour plaintiffs.

It’s good business for Canadian defamation lawyers, but doesn’t reflect very well on our national commitment to free speech.

In addition to the reforms we are lagging behind already, the internet age raises some new and fundamental questions. How does the right of reply on wiki and reader-post sites affect the law? Are we going to hold site operators liable for automatic posts by others? Are going to recognize a defense for a person who operates a public forum for debate?

Since Canada has lagged badly behind on the reforms to protect free speech that have been seen in the USA and elsewhere, it is time for our Courts and legislators to make up for it by leading the way on reforms to protect online free speech.

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Michael Geist

The [p2pnet] 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 Canadian law varies depending on the type of content or the nature of the allegations. In the case of child pornography, the Criminal Code does 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. The same is true for other unlawful content such as hate speech.

Allegations of copyright infringement similarly do not require a site to remove contested content. Liability would depend on whether the site can be said to have authorized visitors to infringe copyright.

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

Moreover, Canadian content owners and ISPs have operated under a voluntary “notice and notice” system for the past few years whereby content owners can forward allegations of infringement to an ISP, which in turn forwards the allegation to its subscriber (whose identify is not revealed). An ISP would typically only face liability if it failed to abide by a court order to remove content.

The role of judicial oversight for illegal and infringing content in Canada is essential, since it strikes a balance 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 current Canadian law, intermediaries can face potential liability for failing to remove allegedly defamatory content once they receive notification of such a claim, even without court oversight.

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. 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 chill on free speech in Canada. 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 chill 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 that could ill-afford to fight legal challenges.

A similar provision in Canada would protect sites such as P2Pnet, as well as the thousands of Canadian 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.

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Canadian Internet Policy and Public Interest Clinic (CIPPIC)

CIPPIC supports Jon Newton in his fight to vindicate his rights of free expression.

The Internet is empowering democratic discourse in powerful new ways. Blogs, chats, citizen journalism and other participatory forums are revolutionizing the ways in which we engage in dialogue. The marketplace of ideas is changing: it is suddenly a whole lot bigger, and no longer just a sellers’ market. The law must recognize the value of these developments, and, where necessary, adapt to preserve the benefits of participatory forums without trampling others’ rights.

Jon’s case highlights the challenges the law of defamation faces to accommodate participatory forums. CIPPIC argues that Jon’s case demonstrates the need for two legal adaptations, one judicial and the other legislative:

1. Judicial Adaptation – The Courts must interpret the law of defamation in a responsible manner that keeps pace with the speed of technological change.

Intermediaries and disseminators play a much different role in facilitating public discourse today than they did in the past. Defenses for innocent dissemination must recognize this reality. CIPPIC calls on judges faced with Internet based defamation actions to interpret defenses to liability, such as the defense of innocent dissemination, in a liberal manner consistent with freedom on expression and the realities of the role participatory forums like Newton’s play in Canada’s democracy.

2. Legislative Adaptation – Judicial defenses to defamation actions react. Freedom of expression’s value to Canadian society suggests that participatory forums require proactive support. It is time for Canada to adapt “safe harbour” legislation for innocent dissemination by Internet intermediaries like Jon. ISPs, website hosts, and bloggers permitting public participation require legislation that, provided that they meet the requirements of the safe harbour, relieves them of liability for third party posts at the outset, and so would relieve them of the need to mount a defense in the first place.

Jon’s case could be an important test case for free speech in Canada.

All Canadians who care about freedom of expression in Canada should raise their voices in support of Jon.

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Jason Munning

The music industry and more importantly today’s music culture are in a dangerous spot. The legal battles that once involved high-powered corporate lawyers in disputes between multi-million dollar corporations have taken an ugly spin towards civilian casualties.

The RIAA’s scare tactic of suing individual music lovers with no possible means of defending themselves was a desperation move that we believe threatens a serious backlash.

Ten Mile Tide believes in a culture of music that involves sharing and diversity and for this reason, we supported Kazaa through its years of litigation with the belief that there was a better solution - only to be blindsided by Sharman Networks’ CEO Nikki Hemming’s hypocritical lawsuit against P2Pnet.

We feel Nikki Hemming’s decision to sue longtime free-speech ally, Jon Newton of P2Pnet, for libel reflects poorly on Sharman Networks and Kazaa.

We do not agree with the culture of litigation that is threatening to consume the music industry and have cut our ties with Kazaa in response to this lawsuit. Our thoughts are with Jon and his family, as well as the other proponents of free speech and expression, who have joined together to show their support.”

[NOTE: Munning is the guitarist and co-founder of the San Francisco-based acoustic-rock band Ten Mile Tide. For years, Ten Mile Tide served as the unofficial poster band for Kazaa, appearing in Sharman Network-sponsored ad and publicity campaigns. Even before the ad campaign, it was one of the most downloaded independent artists on Kazaa with more that 10 million downloads worldwide.]

First they ignore you. Then they laugh at you. Then they fight you. Then you win.

~Mahatma Ghandi

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