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net.wars: Six degrees of defamation

We used to speculate about the future of free speech on the Internet if every country got to impose its own set of cultural quirks and censorship dreams on The lowest common denominator would win – probably Singapore.

We forgot Canada. Michael Geist, the Canada Research Chair of Internet and E-Commerce Law at the University of Ottawa, is being sued for defamation by Wayne Crookes, a Vancouver businessman (it says here).

You might think that Geist, who doubles as a columnist for the Toronto Star (so enlightened, a newspaper with a technology law column!), had slipped up and said something unfortunate in one of his public pronouncements. But no. Geist is part of an apparently unlimited number of targets that have linked to other sites that have linked to sites that allegedly contained defamatory postings.

In Geist's words on his blog at the end of May, "I'm reportedly being sued for maintaining a blogroll that links to a site that links to a site that contains some allegedly defamatory third party comments." (The "reportedly" is now defunct: Geist has since been served.)

Crookes is also suing Yahoo!, MySpace, and Wikipedia. (If you followed the link to the Wikipedia stub identifying Wayne Crookes, now you know why it's so short. Wikipedia's own logs, searchable via Google, show that it's replacing the previous entry.) Plus P2Pnet, OpenPolitics.ca, DomainsByProxy, and Google.

In fact, it's arguable that if Crookes isn't suing you your Net presence is so insignificant that you should put your head in a bucket.

One of the things about a very young medium – as the Net still is – is that the legal precedents about how it operates may be set by otherwise obscure individuals.

In Britain, one of the key cases determining the liability of ISPs for material they distribute was 1999's Laurence Godfrey vs Demon Internet. Godfrey was, or is, an otherwise unremarkable British physics lecturer working in Canada until he discovered Usenet; his claim to fame (see for example the Net.Legends FAQ) is a series of libel suits he launched to protect his reputation after a public dispute whose details probably few remember or understand.

In 2000 Demon settled the case, paying Godfrey £15,000 and legal costs. And thus were today's notice and takedown rules forged.

The truly noticeable thing about Godfrey's case against Demon was that Demon was not Godfrey's ISP, nor was it the ISP used by the poster whose 1997 contributions to soc.culture.thai were at issue. Demon was merely the largest ISP in Britain that carried the posting, along with the rest of the newsgroup, on its servers. The case therefore was one of a string of cases that loosely circled a single issue: the liability of service providers for the material they host.

US courts decided in 1991, in Cubby vs Compuserve, that an online service provider was more like a bookstore than a publisher.

But under the Digital Millennium Copyright Act it has become alarmingly easy to frighten individuals and service providers into taking down material based on an official-looking lawyer's letter. (The latest target, apparently, is guitar tablature, which, speaking as a musician myself, I think is shameful.)

But the more important underlying thread is the attempt to keep widening the circle of liability.

In Cubby, at least the material at issue appeared on the Journalism Forum which, though independently operated, was part of CompuServe's service. That particular judgement would not have helped any British service provider: in Britain, bookstores, as well as publishers, can be held responsible for libels that appear in the books they sell, a fact that didn't help Demon in the Godfrey case.

In the US, the next step was 2600 DeCSS case (formally known as Universal City vs Reimerdes, which covered not only posting copies of the DVD-decrypting software but linking to sites that had it available.

This, of course, was a copyright infringement case, not a libel case; with respect to libel the relevant law seems to be, of all things, the 1996 Communications Decency Act, which allocated sole responsibility to the original author. Google itself has already won at least one lawsuit over including allegedly defamatory material in its search results. But legally Canada is more like Britain than like the US, so the notion of making service providers responsible may be a more comfortable one.

In his column on the subject, Geist argues that if Crookes' suits are successful Canadian free speech will be severely curtailed.

Who would dare run a wiki or allow comments on their blog if they are to be held to a standard that makes them liable for everything posted there? Who would even dare put a link to a third-party site on a Web site or in a blogroll if they are to be held liable for all the content not only on that site but on all sites that site links to? Especially since Crookes's claim against Wikimedia is not that the site failed to remove the offending articles when asked, but that the site failed to monitor itself proactively to ensure that the statements did not reappear.

The entire country may have to emigrate virtually. Are you now, will you be, or have you ever been, Canadian