Monday, May 7, 2007

Shooting the messenger : Taking the Internet to court

Just for a moment, put yourself in the shoes of these two men:

Case No. 1: You’re just an average guy who meets a nice girl and you begin dating. After a few months, the new relationship sours and you decide to move on. But your ex-girlfriend doesn’t move on. She is angry and decides to warn everyone about you on a website called dontdatehimgirl.com. Using an anonymous username, she posts a photo of you, along with your full name, city and state and writes an invective-laden comment, accusing you of being a herpes-infected homosexual or bisexual, who passed on a sexually transmitted disease, and fathered numerous illegitimate children. You ask the website owner to pull the post, but learn that your only recourse is to post a comment as rebuttal to the offending post. The original post will remain, searchable to anyone who accesses the site, just by looking up your name.

Case No. 2: You’re a prominent businessman, with clients primarily in the legal and judicial profession. You decide to join a fledgling political party and soon become the party’s campaign manager and financier. You make some decisions that aren’t popular with some of the party members and they use websites such as Wikipedia and P2Pnet to criticize your decisions. But some go further, posting anonymous statements which you maintain are untrue and which you fear will seriously damage your professional and political reputation. You ask the site hosts to remove the offending posts, but they are either unable or unwilling to comply with your requests, or they do not comply quickly enough.

What would you – what could you – do next? Ignore the posts? Put up your own website to refute the libelous statements against you? Try to track down the anonymous posters and sue them? Or, sue the site hosts?

In both cases, the men at the centre of these attacks decided to fight back in court by suing the site hosts.

In the first scenario, Todd Hollis took the owner of website dontdatehimgirl.com, Tasha Cunningham to court for allowing the posts in the first place and for refusing to pull them down. (Shout out to one-eyed view for bringing this site to my attention. He has an interesting post about it here). The factors leading to the judge’s decision to dismiss the case were not about the damage that may have been done to the plaintiff, nor about the fact that Ms. Cunningham is merely the messenger, not the originator of the message. The decision was made based on old-fashioned jurisdictional law: because the website originates in Florida and the lawsuit was filed in Pennsylvania, it was determined, through statistics from the site’s on-line shop, that few people in Pennsylvania would have seen the site. Therefore, the contacts in Pennsylvania were limited. It seems the door is open for Hollis to re-file his suit in Florida. In the meantime, he is planning to sue the woman who anonymously made the posting, which remains to this day on dondatehimgirl.com.

In the second scenario, Wayne Crookes decided last month to file suit against three sites: Google, P2Pnet.net and openpolitics.ca. Because Crookes is Canadian, this case has been filed in British Columbia, Canada. In a recent interview with the Globe and Mail, Crookes says that he is holding the site hosts responsible for the offending anonymous posts:

"I hope that the outcome is that people will realize they have obligations
and that they will be forced to accept responsibility for their actions. The
larger the organization, the greater the expectation that they will be held
accountable for their actions."

Both of these cases have wide implications for site hosts, free speech and anonymity.

Already, the Wikipedia article about Wayne Crookes has been all but expunged to the point that it is challenging to find the posts which ignited the lawsuit in the first place. What chilling effect will this particular lawsuit and others like it have on site hosts, as the laws vary from one jurisdiction to another?

Will more individuals feel less inclined to put their names to posts, even if they strongly feel they are serving a wider public good? Should there be a looser set of criteria for libel if one is a public figure, working in the public trust, such as Mr. Crookes, versus a more rigorous standard for the average citizen, like Mr. Hollis?

Anonymity on the internet is essential to giving a voice to those who might otherwise be silenced. We don’t all live in truly democratic nations, and the Internet is a global community. Even in Western democratic nations, whistleblowers still need extraordinary protections if they choose to go public.

It will be interesting to follow these two cases on both sides of the border – one private citizen, one public figure. How will the judges decide what is more important – the greater good, or the rights of the individual? The odds seem to favour the greater good, which will likely be small comfort to Mr Hollis and Mr. Crookes.

Just put yourself in their shoes.

7 comments:

YourBootStraps said...

Very interesting times we have upon us. In an age where freedom of speech is a fundamental right of ours here in North America, it is increasingly becoming a point of contention when it can lead to such uses as those outlined in this article. Where do we draw the line? If there is even a line to draw. Looking forward to seeing how this progresses.

LadyPyrate said...

I have heard of that site dont date him girl..the problem that I have is that a woman can lie on it and slander just because the woman is angry...some are telling the truth though...

meleah rebeccah said...

Well, I am so glad you posted this. A few weeks ago I wrote an article for one of my freelance writing jobs about Alec Baldwin. Some people did not agree with my opinion. Which is fine! But what isn't fine was that one of the internet strangers who read my article miss quoted me and procceded to write an entire post/article calling me vicoious names and making asumptions about who I am and what I beleive.

I only found that article over this last wekened because a girlfriend of mine wanted to Google my first and last name.

She called me up frantic, to "go see this site that is talking trash" about me.

I must admit I was UPSET. I was advised by other blogging professionals to LEAVE IT ALONE. Ignore it. So I did.

But, today....weeks later, I saw that same person on mybloglog as one of the "recent viewers" of my pages.

I know I am not supposed to give the internet "trolls" any power, and I know that what he writes about me is far from true, It's just annoying.

I dont know what I am "supposed" to do?

but thank you for putting this out here!

Mark Francis said...

I have much to say, but can't easily say it, as I'm being sued by Crookes. What I will say is that it is far easier to respond in the venues where the political speech he claims to be offended by took place than it is to file lawsuits. And yet, such responses where never made. Futhermore, standing offers for Crookes to respond in some fashion other than just making blanket claims on a lawyer's letterhead have been turned down and/or ignored.

Much of the material in question I have since seen and I do not consider it offensive or libelous. They are just discussions like you see on blog and forums every day.

Crookes commonly makes the claim that linking to a site is distributing libel, even if you aren't linking to the alleged libel, or even if (as in my case) the alleged libel is on a site which the site you link to links to.

The definition of libel in Canada is far more broad than meaning that something is untrue. You can be successfully sued for writing the truth. You can be successfully sued for unintended innuendo. You can be sued successfully for writing fair comment if a judge decides you were malicious. This means that two people can write identical text, and if one author is found to be not malicious, then it isn't libel; but if the other author is decided to be malicious, than it is libel. Same words, same judge, different rulings.

Libel law in Canada is a mess. Aside from the overly broad definition of libel, there's no recognition of the public interest in discussing people's _public_ matters. In the democratic world, we stand alone in that regard. It's time for us to catch up.

A major problem for anonymous posters is that they can't defend themselves in BC court without revealing themselves. If they fail to do so, then their words will likely be found libelous, as in Canada, libel law assumes you guilty until proven innocent.

So now, all you have to do to either reveal an anonymous poster or to take down their material is to claim -- perhaps falsely -- that the material in question is libelous. Remember, it's reverse onus, so you don't have to prove it to be libelous, you merely state that it is.

Since you don't have to live in BC to sue using this ancient libel law, if these lawsuits are successful, then any person, corporation or world power could use ancient BC libel law to order the identities of any person, and/or to remove their content from the Internet, even if the intermediaries and the authors do not have have any interests in BC themselves.

Even if the law where they reside and operate would not find the material in question libelous, the court orders would still be there. Intermediaries would be under a lot of pressure to relent and adapt.

That would mean that free speech on the Internet will tip towards to more restrictive jurisdictions, even for ones as small as British Columbia's.

That, or, BC will just get firewalled. David Weekly of Pbwiki.com (who is also being sued) has already pointed out that with only six employees and 2 million pages on his servers, he would rather just ban users in BC from his servers.

Watch my blog: http://section15.blogspot.com

look under the label 'Wayne Crookes'

Adam Warner said...

This topic is really gaining speed, and I suspect that it will only move toward the forefront of all governments in the next few years.

Thanks for the follow-up on this topic, I am anxious to see what becomes of these two lawsuits and others.

One Eyed View
http://oneeyedview.com

Mimi Lenox said...

I did a post about this recently. It's a horrendous site. Thanks for blogging about it and bringing the issue to the forefront even more.

Peace!
Mimi

JOHNo said...

You have a very engaging style of writing.
I do fear the the so-called right of free speech is being diluted more and more each day; with so many conditions attached to this right, can say "free" in the same breath.
Re meleah's comment, yes it's unpleasant to be slandered, but then we know that what was written is a pack of lies. However, it is something of a dilemma: where does one draw the line? What does someone have to write about us for us consider taking legal action? I like to think that I could turn the other cheek, but I can think of some things that I most definitely wouldn't like to be accused of.