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.
Tuesday, May 1, 2007
Facebook: Student lessons on libel
Some students in Toronto are getting a primer on libel and ethics this week, as they were banned from a class trip as punishment for making false accusations about a teacher on Facebook. In the most recent incident, a group of Grade 8 students jokingly accused a teacher of masturbating in class. There have been two similar incidents in Ontario in recent months, according to this Canadian Press story:"The principal implemented our progressive discipline policy, and so no, there are no new developments," Robert Dunn, superintendent of the York Region District School Board, said when asked if the punishment was being re-thought. The action follows two other recent high-profile incidents in the province.
Five teenagers were suspended last month from Toronto's Birchmount Park Collegiate for writing inappropriate remarks about staff. In February, 19 students who blamed their principal for school policies on cellphone use, and took their gripe online, were suspended from Robert F. Hall Catholic Secondary School in Caledon East, northwest of Toronto.
Part of the problem may lie in the expectations students have of the Internet. "Kids don't think of those places as public places," said Annie Kidder of the group People for Education. In a recent Ipsos-Reid poll conducted for Microsoft Canada, 70 per cent of respondents aged 10 to 14 said they believe the information they put online is private.
Defamation was well described in a 1970 British Columbia Court of Appeal decision called Murphy v. LaMarsh: (Defamation is where) a shameful action is attributed to a man (he stole my purse), a shameful character (he is dishonest), a shameful course of action (he lives on the avails of prostitution), (or) a shameful condition (he has smallpox). Such words are considered defamatory because they tend to bring the man named into hatred, contempt or ridicule. The more modern definition (of defamation) is words tending to lower the plaintiff in the estimation of right-thinking members of society generally.
The major points of defamation law in Canada are as follows:
- Defamation is a "strict liability" tort. In other words, it does not matter if the defamation was intentional or the result of negligence. Defamatory material is presumed to be false and malicious. "Whatever a man publishes", according to one case, "he publishes at his peril."
- Defamation must be a direct attack on an actual reputation, not an alleged reputation that a "victim" believes they deserve. A judge will assess the statement against the evidence of the victim's reputation in their community.
- The remarks must be harmful (i.e. "defamatory") and this will be assessed on a case-by-case basis. Some statements are clearly defamatory. Other statements would only be defamatory to the person targeted by the remarks. What may be a nonsensical or mildly offensive remark to one person may constitute serious defamation to another. The judge will consider the situation of the person defamed in assessing the claim of defamation.
- The defamatory remark must be clearly aimed at the plaintiff. General, inflammatory remarks aimed at a large audience would not qualify as the remarks must be clearly pointed at a specific person.
- The defamatory remarks must be somehow conveyed to a third party. Private defamation just between two parties causes no reputation damage to reputation because there are no other persons to be impacted by the remarks. With libel, the damage is presumed as it is published.
Posting these kinds of accusations on Facebook or in a blog is no different from publishing them in a book or a newspaper. So, I think that teaching administrators are taking the right approach by suspending the privileges of students who make these kinds of false accusations, in order to help them and other students understand the seriousness of their actions and the potential consequences to individuals who are the target.
In Canada, teacher-librarian associations have been advocating for over a decade for an Information Literacy curriculum to provide students with the knowledge and skills to understand the opportunities and risks of web-based information. Students need to understand their rights to free speech, as well as their legal obligations, and based on these incidents, they need it early.
