Northman's Fury

Update: Via the comments from In The House and Senate, this post from Zorpheous:

Now don't get me wrong, it is a fight that needs to faught and won, even if the people are Kate, Kathy and Ezra, but they are hardly the first. Take my blogging partner Mark, who is being sued for defamation for linking to site that had, supposed libellous material. Mark has blogged about this, I have written about, we have pointed the draconian defamation laws for over two years now.

So I have one simple question,... Where were all you freedom of speech warriors then, eh? Oh right, you only support freedom of speech when it is speech you agree with, but when it is Ezra sueing his former employee's or Harper trying to SLAPP the liberal party or the Green Party Backroom boyz trying to squash free speech you just laughed or applauded the people doing the sueing.

. . .

While Mark and are friends, we are not always in communications with each other. This morning, while I was typing my rant, Mark had already posted something about his situation and need for funds. So now, it is time for Kate, Ezra and Kathy to take up Mark's cause as well as theirs, cause it Mark loses his fight, it will set a precedent that can be used against them. Mark fight is their fight and Mark's fight will be faught and won or lost long before theirs. So time to pony up people, if you truly believe in what you have been screaming about, go to Mark's place at Section 15 and help him out

Let me second those sentiments. The Crookes case is the one to focus on, and I for one, feel far better supporting the defendants in that case than the likes of Kate McMillan.

We now return you to the original posting

Admittedly, when I first heard of the libel suit that Richard Warman had launched against a group of bloggers, I was, shall we say, less than sympathetic to their cause. Free Speech doesn't cover you when you launch libelous attacks. Trying to hide behind it when your defamatory rhetoric comes back to bite you in the ass doesn't carry any water with me.

Some further research into the matter, however, indicates that there may be more at stake here than my first rough glance showed. The trigger was a comment by Stageleft:

Part of the action claims that a link to a defamatory publication is republication of the libel - and that concerns me.

Part of the action claims that allowing what others said to stand is also actionable - and that concerns me.

To my understanding action against The Free Dominion, Levant, and Shaidle, would appear reasonable - they actually said stuff.

McMillan appears wrapped up in this because of things she allowed other people to say - and as a guy that owns a group blog with unmoderated comments that concerns the living f*uck out of me.

Now, there are a couple of points there that I'm going to have to address individually, the first being what kind of liability do blog owners face for links? Something like this is probably an overreaction at this point, but it does indicate the kind of worry some may be facing.

As it happens, this isn't the first time this issue has came up. I posted about a CBC story about just such an issue back in August. (YouTube video is gone, but the CBC story can be found on their site here.) That Wayne Crookes case is about the widest application of such an argument in a libel case I can find. Michael Geist wrote a good summary on how that lawsuit threatens online Free Speech. That case is the precedent-setter in Canada, is ongoing, and anyone inclined to defend Free Speech should consider donating to that legal defense fund.

The second point is trickier. How much responsibility do you have for what others post on your site? I can see a site owner bearing some responsibility for what others are allowed to post on their sites, and to remove posts that libel others. Even there, with larger sites where any registered user can post diaries, that logic breaks down as most of those aren't going to be moderated. Comments are even worse, particularly if you don't want to monitor them all the time. If you can be held accountable for what somebody says in relation to your post, it's a quick way to ensure that most blogs disable comments completely, which takes a great deal of the give-and-take nature of blogs and their commentary out of the equation and diminishes their power. (This doesn't mean that the persons who made those posts and comments shouldn't be held accountable for them. Again, I have no sympathy for people who get nailed for what they themselves have said.)

Of course, just to muddle the issue a little further, this post by Red Tory indicates that Ontario's libel laws may be part of the problem:

The present state of Canada’s libel legislation is another bête noire of mine. Simply put, it’s archaic (quite literally medieval, dating back to the time of Henry VII in fact) and in desperate need of overhaul. Under the current legal regime, one can be sued for anything said about another person that allegedly damages their reputation. If sued, the onus is on you to prove the truth of your statements; the fact that you genuinely believed them to be true is not good enough. Even truth is not an absolute defense — if the court finds you told the truth but your intent was malicious, you might lose anyway. Little wonder that people come from all over the world to file libel suits in Canada, particularly in the province of Ontario.

Anyway, I by no means have the legal expertise or knowledge to determine just who is right and wrong on this, but the SDA part of the case appears to be something all Canadian bloggers should be paying close attention to. A couple of other pretty good discussions on the matter can be found here and here, and I'm certain the story will gets loads of victimization play from the defendants ideological brethren.

Cross-posted to In The House and Senate