Lawsuits put online free speech at risk

April 30, 2007

Michael Geist

Despite garnering only limited media attention, two recently filed defamation lawsuits in British Columbia have the potential to reshape free speech on the Internet in Canada. 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.

Crookes, who was involved with the Green Party of Canada, was unhappy with a series of Internet postings that he argues paint him as disreputable and as a bully. In response, he filed lawsuits against the posters. (Personal disclosure: Crookes previously demanded that I remove two comments posted on my personal blog by visitors to the site.)

The lawsuits target a handful of individuals who are said to have written the postings, including a Toronto-based librarian, a Cambridge-based engineer and several anonymous posters whose identities are unknown.

Had the lawsuits stopped there, they would not be particularly significant. Lawsuits alleging defamation are not unusual and the cases would likely have resulted in settlement discussions or full trials examining the merits of the claims.

The lawsuits could prove to be critically important to the Internet in Canada, however, because they cast the net of liability far wider than just the initial posters. 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.

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.

For example, one lawsuit argues that Yahoo! refused to shut down an offending site – a Green Party of Canada chat board – and therefore libelled Crookes. Similarly, MySpace is targeted both for its failure to shut down a personal page that contained allegedly defamatory content as well as for its refusal to remove a link to OpenPolitics.ca, a site that the suit claims hosted defamatory content (Crookes has also sued OpenPolitics.ca).

The inclusion of Wikipedia in the lawsuit extends the circle of liability even further. According to the statement of claim, an article about Crookes appeared on three occasions in Wikipedia. In each instance, Crookes asked Wikimedia, the company that maintains the popular online encyclopedia, to remove the article. In each instance, it complied with the request.

Despite taking down the content, Wikimedia has now been sued for failing to "monitor its website to ensure that the libels of [Crookes] did not reappear on its website." Moreover, the suit also seeks to hold it liable for refusing to remove an article on online journalism that contains a hyperlink to an article about Crookes.

The broadest extension of liability in the lawsuit involves the inclusion of a U.S.-based service called Domains By Proxy. The company, which allows individuals to protect their privacy by anonymously registering domain names, is being sued for refusing to divulge the identity of the registrant of a website that contained an article about Crookes. The lawsuit argues that the domain name registration service has "accepted responsibility for the actions of the owner of the website."

While it will fall to a judge to determine whether the articles and postings are indeed defamatory, the inclusion of such a broad range of Internet intermediaries could have a significant chilling effect on free speech in Canada.

If successful, the suits would effectively require websites – including anyone who permits comments on a blog or includes links to other sites – to proactively monitor and remove content that may raise liability concerns. They will also call into question the ability of domain name registrants to guard their privacy by refusing to publicly disclose their identities.

In response, it is likely that many sites will simply drop the ability to post comments, since the challenge of monitoring and verifying every comment will be too onerous.

Alternatively, many sites may abandon Canada altogether by establishing their online presence in the United States. Courts in the U.S. have repeatedly denied attempts to hold intermediaries liable for content posted by third parties on the grounds that a 1996 statute provided them with immunity for such postings.

Canada would do well to introduce a similar provision, since the consequences for defamatory speech should rest with those directly responsible, not mere bystanders with deep pockets.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

Links to the Story

• Copy of Lawsuit filed in B.C. on March 2, 2007
  
• Michael Geist on the dangerous significance of Crookes' lawsuits - Section15 post - April 30, 2007
  
• I am being sued by Wayne Crookes - Section15 post - April 23, 2007
  
• Search for news stories about Wayne Crookes on Topix.net
  

Woman wins payout for slurs on blog

Woman wins payout for slurs on blog

Ed Pilkington in New York

Thursday October 12, 2006

The Guardian

A jury in Florida has awarded a woman $11.3m (£6m) in costs and damages after a former acquaintance accused her of being a crook, a con artist and a fraudster on an internet talkboard.

The award, believed to be the largest verdict of it sort relating to individual postings on bulletin boards or blogs, was handed down by a jury in Broward County, Florida, against a woman from Louisiana. The sum included $5m (£2.7m) in punitive damages.

Sue Scheff, who runs a small educational business in Weston, Florida, filed the lawsuit in 2003 claiming she had been subjected to 10 months of ugly criticism on the internet from Carey Bock. Ms Bock, from Mandeville, Louisiana, had posted the comments on Fornits.com, a board used by parents of troubled teenagers. Ms Bock did not attend the final hearing.

With almost two new blogs created every second, and 1.6m postings each day, said the San Francisco site Technorati, the mass of unmediated comment from individuals is changing the face of media law. "This is a growing trend because of the exponential growth in the number of people publishing on the internet who do not have the training or oversight of traditional hardcopy publishers," said Dave Heller, a lawyer with the New York-based Media Law Resource Center which monitors legal actions arising from the web.

Craig Delsack, a media lawyer in Manhattan, said that many bloggers were publishing first, thinking later: "People are thinking they can say what they want but they don't realise the long-lasting implications of what they write and that they can be held accountable. Posting is not like having a conversation in the bedroom with your boyfriend."

Several cases have come to court in which individuals have been sued by companies for their comments on the web. It is less common for private individuals, without either huge personal wealth or public profile, to sue each other.

Lawsuits currently before the US courts include that of Todd Hollis, a Pittsburgh lawyer, whose name appeared on DontDateHimGirl.com, a website on which women comment about the men they claim to have known. He is suing women who posted claims he was a transmitter of sexual diseases, which he denies.

The Florida case arose after Ms Scheff helped Ms Bock remove her children from a special school in Costa Rica. She says Ms Bock grew belligerent after she refused to give her confidential information for a documentary she was working on.

Ms Scheff says she is still paying off the legal fees and accepts she will get little of the $11m. "But this award is vindication. I hope it does make people think twice about what they post on the internet. When people post they are writing from emotion, and it can be very damaging."

Because Ms Bock failed to defend herself, media lawyers say the award is less likely to set a precedent.

She told USA Today that she had no money to pay the damages, and said she had been silenced. "I don't feel like I can express my opinions. Only one side of the story was told in court. Nobody heard my side," she said.

Terry Polevoy at work

Terry Polevoy at work

Why you should be concerned about defamation and libel

- WANTED -
VICTIMS OF DEFAMATION
ON THE INTERNET

Defamation and Libel on Blogs are major headaches

When your name is slung around Usenet there is little you can do because that internet vehicle is out of control. Blogs like Google.com owned Blogger.com allow posters to leave defamatory messages to many of their sites.

If you've been fighting to clear your name, and Google refuses to take action against these people, or provide you with more information about who is running the Blogs it's time to fight back.

Tell us your story here if you want. Posts will be screened, and if they slip by, someone let me know and I will remove them as soon as can.

Google and their executives have a fiduciary responsibility to their shareholders. If they think that they can ignore complaints from those who have been defamed, then they are wrong.

So, if you would like me to post your story about defamation and how the owners of the Blog responded just send it to me via e-mail. Within hours of setting up this Blog some idiot started making defamatory comments.

If you would like to help manage this Blog, let me know, too.

Thanks for your help and your support.

Terry Polevoy

Tim Bolen sued by Aetna

Tim Bolen sued by Aetna in Cavitat countersuit

Exemplary Damages request:

The conduct of Tim Bolen was intentional, willful, wanton, malicious, reckless, grossly negligent and deserving of punishment. Aetna is therefore entitled to exemplary or punitive damages in the maximum amount allowed by law to punish Jones and Cavitat and to deter other similarly-situated persons from engaging in like conduct.

• Casewatch.org link to Aetna's lawsuit.

Aetna has filed suit against a device manufacturer who made the mistake of filing a lawsuit accusing Aetna of improperly classifying the Cavitat device as "investigational and experimental." Tim Bolen, acting with his wife, Jan, and their company "JuriMed," have been attempting to promote the business of Cavitat for some time. As Cavitat's agent, Bolen, his wife, and company have engaged in a venal and systematic campaign to attack Aetna and persons whom Cavitat alleges are associated with Aetna, all for the purpose of his making money for himself and the others he has acted in concert with in advancing the baseless claims asserted against Aetna in this lawsuit. Bolen has a history of advocating for the sale of holistic and alternative medical products and concepts and of attacking evidence-based mainstream medicine. He has been "hired," "retained" or "consulted" in the past by attorneys and for individuals accused of medical fraud, malpractice and quackery. He also has provided crisis management services for medical practitioners accused of unethical conduct.

Cavitat, Jones, Bolen and others have engaged in a campaign to intimidate and obstruct testimony of witnesses under subpoena in this case by various means including the posting of false representations on the Internet and physical stalking of witnesses in this case.

Ontario Court issues injunction against Internet defamation

• Ontario Court issues injunction against Internet defamation

In the June 4, 2004 decision in Barrick Gold Corporation v. Lopehandia, [2004] O.J. No. 2329, the Ontario Court of Appeal ordered increased damages and issued a permanent injunction against a British Columbia resident responsible for "a systematic, extensive and vicious campaign" of Internet libel against Barrick. The decision demonstrates that, in appropriate cases, Canadian courts will issue injunctions prohibiting Internet defamation even though the responsible persons are outside the court's territorial jurisdiction.

Appeals Court Upholds Malicious Prosecution Suit against Hulda Clark and Attorney Carlos Negrete

The California Court of Appeals has reinstated a malicious prosecution suit that Dr. Stephen Barrett filed in December 2002 against Hulda Clark and attorney Carlos J. Negrete.

Clark is an unlicensed naturopath who claims she can cure cancer, AIDS, and other serious diseases with a low-voltage electrical device and various herbs. [Barrett S. The bizarre claims of Hulda Clark. Quackwatch, Nov 9, 2004] Barrett is suing her for libel because she hired a "publicist" who has been attempting to destroy his reputation by spreading false and defamatory statements about him.

[Barrett S. A response to Tim Bolen. Quackwatch, March 18, 2005].

In 2001, Clark filed a malicious cross-complaint in which she accused Barrett, his wife, and many other defendants with "racketeering" and a long list of other crimes and civil wrongs they did not commit.

[Barrett S. Bogus "anti-quackbuster" suit dismissed: Why I am suing the lawyer who filed it. Quackwatch, March 18, 2005] In 2003, a lower court judge dismissed the malicious prosecution suit on grounds that Barrett not had presented enough information to conclude that Clark and Negrete knew the cross-complaint was groundless.

In reversing the lower court decision (see below), the Appeals Court used these words to describe their reasons why the original court should go to trial:

"the scurrilous nature of the defendants' allegations of wrongdoing and their efforts to publicize them widely on the Internet, when coupled with their utter failure to offer any proof of their charges"

Appeals court upholds malicious prosecution suit against Hulda Clark and Attorney Carlos Negrete. Quackwatch, March 22, 2005

Negretes failed lawsuit - Adobe .pdf 33 pages.