Web content on trial: Who gets sued?

Two Canadian cases of alleged online defamation have called into question the legal role of ISPs and even bloggers or wiki hosts – who should be responsible for monitoring content?

Earlier this year, Sharman Networks, the Australian parent company of file-sharing application Kazaa, and its CEO Nikki Hemming launched suits against B.C.-based p2pnet.net, a blog site run by Jon Newton. The suits claimed that an article Newton posted on his site was defamatory, as were several reader comments that were made in response to the article. Sharman eventually dropped its suit, but Hemming has persisted.

A second case involves Michael Pilling, in Toronto, who runs a Wiki-based political discussion forum OpenPolitics.ca. Pilling is currently facing a libel suit from Green Party financier Wayne Crookes, who claims that an article that was posted by an OpenPolitics contributor contains disparaging and false information. “I do have sympathy for people who want to protect their reputations,” said Pilling, but “Canada’s laws are outdated to the point where we’re becoming a haven for cyber-libel suits all across the world.”

It’s rare that situations like this even come to light, said Internet lawyer and University of Ottawa research chair Michael Geist, since the overriding impulse for ISPs and bloggers is to remove content at the first hint of a defamation suit.

In response to charges of defamation, regardless of whether the accusation has any justification, “the likely response of most intermediaries will be to remove the content because the risk of not doing so outweighs the benefits of keeping it up,” said Geist.

“It would appear . . . that removing the content is the costless choice, even though there is a very big price to be paid, and of course that is the price of freedom of speech.”

Newton has retained the services of Dan Burnett, a media lawyer with Vancouver law firm Owen Bird to help with his case. Earlier this month, a legal fundraiser was held at Toronto nightclub the Rivoli in support of his cause. So far, Newton’s campaign efforts have raised approximately $2,800 – an amount he called “not nearly enough.” But Newton is prepared to continue his legal battle and is gratified that he is at least able to bring some attention to a largely ignored issue.

“I’m going to do whatever I can to use my case to bring Canada’s libel laws, which as they stand completely pre-date the Charter of Rights, into the digital 21st century,” he said in an e-mail interview.

David Fewer, staff counsel with the Canadian Internet Policy and Public Interest Clinic, based in Ottawa, agreed that libel law in this country hasn’t been able to keep pace with technological change. Laws are still structured to reflect newspaper-style publishing, he said, where there is a delay between when content is written and when it is available for public consumption.

These publishers have the resources and wherewithal to prevent their publications from becoming outlets for defamation – not so in the online world, where information is often published instantaneously and without the benefit of mediation, he said.

U.S. law currently makes that distinction, he said, calling for the creation of a set of Canadian legal guidelines would help signpost the issue here.

“We don’t want the Internet to be the Wild West. There’s got to be a role for responsible intermediary behaviour here, but the answer isn’t blanket liability, the way defamatory law is currently structured.”

“Right now it’s very difficult to determine in Canada what bloggers’ rights are,” added Pilling. “What they don’t usually know is that they’re being held to the same standard right now as the Globe and Mail.”

The issue will continue to take on importance as the boundaries between content consumers and content providers become more obscured, said Geist.

The defamation issue affects ISPs, bloggers, chat rooms, “or others that facilitate discussion,” he said. “The notion that they might be liable for some of the comments from the users of their sites I think is problematic.”

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