The BC Court of Appeal has ruled in favour of p2pnet in its ongoing libel defense case. Michael Geist has written a bit on it this morning as well.
Basically, in discussing a lawsuit by the plaintiff against the site OpenPolitics, p2pnet had published certain hyperlinks as references. The plaintiff responded by demanding, though a libel notice, the removal of the links. p2pnet refused, and the matter went to court.
Note that under our outdated libel law, even if p2pnet had removed the links and had published an apology, a lawsuit could still progress on the matter.
No court has yet ruled on whether or not the material on the other end of the hyperlinks is libelous.
p2pnet pleaded that the hyperlinks were references, much like footnotes, and were not recommended or stated to be factual. Furthermore, the author of the p2pnet article, Jon Newton, argued that he was not familiar with the content linked to.
A summary trial was held, and the trial judge ruled that the hyperlinks in this instance did not constitute publication, and without publication there can be no libel, so he dismissed the case.
The plaintiff appealed, but the dismissal was upheld. Sadly, it was not a unanimous decision, with one judge actually arguing that it could be inferred that at least one person used the hyperlink, and that was enough to constitute publication, and that just having the link was enough to imply that the link was endorsed by the author (hey, there's only billions in commerce here, important political and social discourse... what's that in the face of someone's unproven allegation of libel?). As a result, the plaintiff has some ammunition if he decides to head to the Supreme Court of Canada with this. He must do so within the next two months.
One issue remains unresolved, identified by the appellate court. After receiving the legal notice from the plaintiff to remove the hyperlinks, the defendant did not do so. Unfortunately, the defendant may have liability from that point in time on. It all depends on whether the plaintiff pursues it, and what the trial judge has to say.
No one should interpret this as meaning you can just link to anything or ignore libel notices. If you are clearly aware of what lies on the other side of the link, a judge may be less inclined to let you go. If you at all recommend what is on the other side, you are likely to be held accountable. When someone sends you a libel notice concerning a link, you are probably going to be held responsible if you do not promptly remove it.
Libel law in Canada is still very badly broken. The reverse onus nature of it -- that is, you are actually guilty until proven innocent -- and the other plaintiff-friendly assumptions about it (damage is assumed and need not be proven, publication is easily assumed, it takes a trial to determine libel) make for long drawn-out and expensive processes, even when the material in question is quite defensible. Even after a successful defense, costs awarded do not come near to covering expenses. There is no recognition of the damage done to the defendant's reputation though public knowledge of the allegations made by the plaintiff. Also, as the common law places many restrictions upon parties discussing in public matters before a court, the restriction of the right of free expression the defendant suffers is also not recognized. This is especially problematic when the matter in dispute is of public importance, such as PM Stephen Harper using libel law to silence Opposition criticism of his actions in the Cadman affair -- a matter which remains still unclear due to a private deal with the Liberal Party to settle the lawsuit. As parties are forced to be largely silent, plaintiffs can use libel law to gain a reprieve from public scrutiny, even when guilty as hell. (Ironically, the Conservative Party is currently a defendant in a libel case, and, inter alia, is arguing that the needs of public discourse in the political realm should exempt political parties from libel claims.)
Garth Drabinsky falsely sued for libel to leverage a defendant into submission. The defendant, Alex Winch, had gone public warning of financial irregularities in Livent corp 14 years ago. He was right, as we all now know, but, buried under legal bills, he relented, and publicly apologized with ads in The Wall Street Journal, Forbes and The Globe and Mail. No, Winch has no avenue of remedy today, even given Drabinsky's conviction for bilking some $500 million from investors. Winch was a whistle blower, doing everyone a service. Too bad his reasonable concerns for the public were treated as a private matter.
You can read all about that grave abuse of Canada's libel law here.
The p2pnet case is but of several still ongoing lawsuits filed by one plaintiff in relation to disputes centered around internal political matters within the Green Party of Canada (GPC) 2004-2006. I found himself dragged into court as well, over so-called remote hyperlinking, that is, having a link to a site which had a link to site to plaintiff objected to. I was administrator to the site, not the author, and I did not control what was on the other side of the links, nor did I often know. The site I administered featured a slate of candidates for the GPC council.
Quite a disincentive to volunteer politically, I can tell you.
Famous law professor Michael Geist similarly found himself as a defendant against the same plaintiff for having links on his blog. Fellow blogger Chris Tindal, in writing about the foolishness of suing a wiki for libel (the original case was over a wiki named OpenPolitics, which started out as an independent legal copy of the GPC's living platform wiki) was also sued for having hyperlinks. Both are still before the courts. The OpenPolitics case remains before the courts, but still adjourned indefinitely.
There are more, including mine, but I'm all but officially extricated.
The full court ruling is here.
Canada needs to reform its libel law, and fast. We are falling out of line with the rest of the West. Some companies have expressed fears that libel liability is far too easy to acquire in Canada, even for material published in another jurisdiction, raising the possibility that companies such as Google (another defendant) and PBworks (formerly pbwiki, another defendant) could exclude our jurisdiction from their services. It's just to onerous to police what people write, and libel is actually often quite hard to independently spot.
You are not safe out there.
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