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Canadian Lawsuits Put Blogging on Trial

On April 30, University of Ottawa law professor Michael Geist wrote a commentary in The Toronto Star in which he discussed two recent defamation lawsuits that he said "have the potential to reshape free speech on the Internet in Canada." Geist's commentary explained:

"The suits pit Wayne Crookes, a B.C.-based businessman, against a who's who of the Internet, including Yahoo!, MySpace and Wikipedia. Those companies are accused of defaming Crookes not by virtue of anything they have said, but rather by permitting their users to post or link to articles that are allegedly defamatory."

Now, Crookes, the plaintiff in those two cases, has sued Geist, and the lawsuit is based at least in part on Geist's mere linking to sites that Crookes alleges to have defamed him -- specifically, and In fairness to Crookes, who owns a British Columbia title-search business, his complaint against Geist includes allegations beyond simple linking. Crookes contends, for instance, that Geist refused his request to remove a defamatory comment from his own site. (Geist says here that he did take it down.)

Leave it to others to sort out these allegations. But what troubles many about Crookes's lawsuits, as Geist himself described it, is this:

"The common link with all of these targets is that none are directly responsible for alleged defamation.  Rather, the Crookes lawsuits maintain that Internet intermediaries should be held equally responsible for such content."

As Crookes' own complaint puts it, Geist became a publisher of libel "by advertising, promoting, and driving internet traffic to the website through his articles ..., by hyperlinking with, and by refusing to remove the hyperlink when requested." Such allegations, Geist wrote of these lawsuits before he became a party, "cast the net of liability far wider than just the initial posters" of the allegedly defamatory material.

"Indeed, the lawsuits seek to hold accountable sites and services that host the articles, feature comments about the articles, include hyperlinks to the articles, fail to actively monitor their content to ensure that allegedly defamatory articles are not reposted after being removed, and even those that implement the domain name registrations of sites that host the articles."

U.S. courts, Geist notes, have repeatedly denied attempts to hold intermediaries liable for content posted by third parties on the grounds that the Communications Decency Act provides them immunity. Canada should enact a similar law, he urges, "since the consequences for defamatory speech should rest with those directly responsible, not mere by-standers with deep pockets."

Posted by Robert J. Ambrogi on May 31, 2007 at 05:14 PM | Permalink | Comments (2)


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