Just when we get freedom of speech on the Internet, someone tries to take it away

Wayne Crookes photo: P2Pnet

The Supreme Court of Canada is getting ready to hear the case of Wayne Crookes, a former fund-raiser and organizer for the BC Green Party.

Crookes took offense at alleged derogatory remarks made about him on several websites including Open Politics.ca

That’s the nature of the web, people say the rudest things, some of them nasty and perhaps defamatory. They do it anonymously. In the US, the web site and host can rely on safe-harbor provisions of the CDA (Communications Decency Act). “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230

Canada doesn’t have the same provisions although journalists are protected from defamation lawsuits when they report the facts they know. 

Open Politics.ca apologized to Crookes and removed the alleged derogatory comments. That is making Crookes happy. He is suing Google, MySpace and Wikipedia for their hyperlinks to the article and comments.

A lower court said hyperlinks are not publication.

Justice Stephen Kelleher of the B.C. Supreme Court dismissed the case, saying the links were like a footnote or a reference to a website in a newsletter. “I conclude there has been no publication,” he wrote.

“David Fewer, director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, said the lower courts got the decision right and there’s concern about the high court taking the case.

“If they’re doing it to give a pretty clear validation of the decision at trial and the court of appeal . . . kind of wanting to progress the law, then it’s probably a good thing.”

But a decision overturning the lower courts in favour of Crookes could cast a chill on the web, he said.

“The Crookes case is really talking about hyperlinks,” he said. “Does a hyperlink constitute publication or a re-publication of allegedly defamatory content?”

Fewer said the internet is based on the use of hyperlinks.

“To import liability in those circumstances is to impose just a tremendous burden of liability on all participants in the internet,” he said.

“Not just hosts, not just websites, not just bulletin boards, not just ISPs, but also individual participants, commenters on blogs, commenters in newspapers, newspapers themselves, other publishers who allow anybody to speak on the internet.

“You can just imagine the chilling effect that would have.” CBC

For more on the original court decision, see P2Pnet News.