International online defamation is one of the technology law issues d’jour. In the United Kingdom, Parliamentarians are battling it out over a new statute; Canada’s high court recently made the maple-leaf country’s first ruling on the liability of hyperlinks; and here in the United States, yet another Twitter libel lawsuit was withdrawn before it got to trial.
Hyperlinks Not Defamatory In Canada
Crookes v. Newton
After 15 years of widespread Internet use, the Supreme Court of Canada released a judgment on Crookes v. Newton, the country’s first decision on hyperlinking. At the crux of the case was Canada’s “publication rule” as it relates to defamation. Traditionally, the law of Canada’s land faulted any individual or entity that repeated or published defamatory content. In Crookes v. Newton, judges were asked to decide if placing a hyperlink to libelous information on a blog, website or social media platform constituted “publication.”
Unlike many defamation lawsuits, the facts of Crookes v. Newton were surprisingly straight forward: Jon Newton operated a multi-topic blog out of British Columbia. His website contained “deep” and “shallow” links to information about Wayne Crookes – information Crookes claims is false. Looking to clear his good name, Crookes sued Newton for defamation, arguing that the links constituted publication.
Court Says Merely Linking To Defamatory Content Isn’t Defamatory In It Of Itself
After much deliberation, however, Canada’s high court ruled that a strict “application of the publication rule [sic] is like trying to fit a square archaic peg into a hexagonal hole of modernity.” The majority judges agreed that a “deep” or “shallow” link, in it of itself, does not constitute publication and is analogous to a foot- or end-note. That being said, the ruling panel also made it clear that links near or around accusatory text “may still be considered publication and therefore defamatory” – not because of the reference link, but because of the surrounding context. In other words, in the court’s mind, a link by itself is A-OK, but if you write a summary or commentary about the information in the link, then you’re still on the defamation hook.
While the court’s decision is ostensibly forward thinking, they did leave a lot of bytes on the bench for later consideration, and pointedly mentioned that the ruling did not account for “newer” technologies, like automatic hyperlinking.
International Online Defamation: UK Parliament Debating New Online Libel Bill
New UK Defamation Law
Over in the United Kingdom, things are also heating up on the online defamation front. Now that parliament has successfully changed the law allowing Will and Kate’s first-born spawn — even if it’s a female — to rule, they’ve turned their attention to more pertinent issues, like the rights of UK citizens when it comes to free speech and slander.
The proposed defamation act primarily focuses on issues related to libel tourism, but the bill is also a bold attempt to marry Internet and print publishing standards.
Notice and Take-Down Procedure
The “notice and take-down procedures” outlined in the UK’s draft defamation bill may result in a worldwide ripple effect. If approved, website operators in the UK, upon receiving a complaint about possibly defamatory material on their site, will be required to publish the objection alongside the original article, post or comment. If the material in question was posted by an anonymous user, editors will be required to remove the copy in question, unless the original poster agrees to reveal their identity.
What About Whistle-Blowers?
You’re not alone if you just thought, “Hey wait a minute! What about whistle-blowers!?” Parliamentarians thought of that too, and did include an exception for cases where there is “an overriding public interest in publication.”
In the next breath, however, pro-bill legislators published a statement saying that they hope to promote “a culture shift towards a general recognition that unidentified postings are not to be trusted as true, reliable of trustworthy.” (One has to wonder if the societal push to associate anonymity with prevarication will have a chilling effect on the emerging online whistle blowing community, which has only recently begun to find its legs.)
International Defamation Laws: Oregon’s Twibel Lawsuit Denied
Meanwhile, on this side of the pond, Internet defamation lawyers were once again disappointed to hear that another possible Twitter libel case was dismissed before it reached the trial stage, thereby eliminating an opportunity to establish substantial “twibel” legal precedence.
Doctor v. Blogger Online Defamation Lawsuit
The cyberlibel case that “almost was” involved Oregon-based Dr. Jerry Darm and blogger Tiffany Craig.
The tussle began when Craig, after hearing one of Darm’s “ubiquitous” advertisements for his cosmetic procedure medical spa, Aesthetic Medicine, posted a negative missive about him on her blog. On her website, CriminallyVulgar.com, Craig pondered how consumers’ could research the records of doctors, like Darm, who advertise. Craig reasoned that if the average patient relies on ads, how can one follow up to determine the accuracy of said endorsements?
Craig did some digging and shinned a social media light on some potentially damaging information about the doctor. Specifically, Craig discovered Darm had been disciplined by several state medical boards for “inappropriate boundary violations” with female patients. If you believe the online chatter, Darm allegedly offered to provide off-hours vein surgery in exchange for sex. Presumably eager to share the fruits of her sleuthing, Craig tweeted about her Dr. Darm discoveries.
And Darm promptly filed a $1 million dollar online defamation lawsuit.
It was up to Judge Jerome LaBarre to decide if the case was fit for trial. Current U.S. defamation laws require that LaBarre determine if 1) Craig’s comments were made in a public forum, and 2) whether the subject matter of the allegedly defamatory material was a matter of public interest. If the judge determined that the answer to those two questions was “yes,” then there would be grounds for a free-speech defense.
LaBarre ruled that “any website that allows the posting of comments without a fee or some sort of admission process” is a “public forum.” He also decided that health is a matter of public concern. During the hearing, Craig’s lawyer, Linda Williams, moved for the case to be dismissed using anti-SLAPP (strategic lawsuit against public participation) regulations. Thomas McDermott, Darm’s lawyer, objected to Craig’s facility as a medical watchdog since she had never been a patient of his client.
Plaintiff Withdrew Case
A second hearing was set for Oct. 20th and McDermott was expected to argue age-old defamation standards in a 21st century context. But on Friday, Oct. 14, 2011, Darm dismissed the charges against Craig.
And that was that. Yet another social media defamation lawsuit cut short before it got good.
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