Friday, May 4, 2007
Free speech on social Web: Canada
Anyone concerned about defamation on the social Web – such as school teachers and administrators – might be interested in a lawsuit filed in Canada by a businessman who says postings in a variety of sites “paint him as disreputable and as a bully.” Writing in the Toronto Star, law professor Michael Geist says that if Wayne Crookes, formerly involved with the Green Party, wins his cases against MySpace, Yahoo, and Wikipedia, among other services, they “could have a significant chilling effect on free speech in Canada.” Geists writes that “the suits would effectively require websites - including anyone who permits comments on a blog or includes links to other sites - to proactively monitor and remove content that may raise liability concerns.” Sites and bloggers would respond by dropping the option for people to add comments. He cites the US’s Child Online Protection Act of 1996, saying “courts in the US have repeatedly denied attempts to hold intermediaries liable for content posted by third parties on the grounds that a 1996 statute provided them with immunity for such postings” and concludes that Canada would do well to introduce a similar provision,” explaining why.
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As one of the person being sued by Wayne Crookes, the real underlying issue is what defamation is in Canada in the first place. Libel law in Canada is quite backwards compared to the rest of the democratic earth. These particular cases are actually about political speech in that they are dealing with online discussions and postings regard his public activities in the Green Party of Canada, not about his private life, or what he does professionally.
ReplyDeleteAs for the duties and obligations of intermediaries, part of that question is whether we want Google and Yahoo et al to be censoring what we write based someone's ability to slap some writing on a lawyer's letterhead, or just to restrict what we write so much that comment on any person, however public, is impossible.
Having recently been the victim of a personal libel in a document distributed privately (this has nothing to do with Wayne Crookes), I understand how horrible it can be; however, we have to realize that further restrictions on our Charter rights and freedoms will simply penalize those trying to contribute to society while likely not preventing those trying to abuse those same freedoms from finding some way to spread the same defamatory material.
In what probably is the least talked abut most important aspect of these lawsuits is that, if successful, tiny BC will be using its ancient, reverse-onus libel law to publish people who don't live in BC and didn't physically publish there. Futhermore, if the BC courts are used to force the revealing of the identity of several anonymous persons, then there's little to stop oppressive foreign powers from using BC courts to get the identities of dissenters publishing anonymously. All they have to do is to demonstrate that they have an interest in BC, which is not hard to do with a little bit of prior legwork.
Certainly, using BC law to shut down political dissidents is a threat to world freedom.
To judge by the reception Mr. Crookes' actions have received, and the vastly greater number of people who have seen for instance the story of his involvement in the Green Party of Canada
ReplyDeletehttp://www.answers.com/topic/green-party-of-canada-living-platform
http://openpolitics.ca/GPC+Council+Crisis
it may be just plain counter-productive to one's reputation to go around suing political critics.
A good lawyer will advise clients to do anything possible to avoid filing a lawsuit since this only draws public attention to claims that they would like to disappear.
But the situation for individuals in other contexts is not that much different.
Recently in Canada there was a case of a schoolteacher described as "rubbing herself" by a student on Facebook. The publicity that attached to the disciplinary action also attached to the teacher. In the long run, this may be far more damaging to the teacher than then student. Not only will they be seen as harshly silencing what amounts to ordinary student banter, their names will be attached forever after to those allegations. That is, vastly more conversations about this teacher will now include the phrase "rubbing herself" than would have been the case previously. This is not a good thing for the profession of teaching. Legalist approaches to these problems fail so badly that people now need to be protected from their own bad judgement. And for the corrupt members of the legal profession who will file any suit on even the mildest excuse, regardless of what it actually will mean for their own client's long term reputation.
Thank you both for your comments. I think you're right on the mark that the legalist approach simply doesn't work and can in fact be even more destructive on the user-driven or social Web - destructive in that it just tends to perpetuate the defamation or cyberbullying. I've blogged several times (e.g., here) about how the best defense - more than ever in this supremely uncontrollable, grassroots medium - is offense, meaning: being our own spin doctors and proactively posting positive stuff about ourselves for search engine crawlers to find and index. I think this is going to become one of the primary elements of "online safety" instructions. I don't think it'll be a hard one for youth to learn, in fact they need to help the adults in their lives with this.
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