Ruling creates new defamation defence

For the London Free Press – January 25, 2010

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“Responsible communication” expands media freedom of expression and opens door to more frank discussion of matters of public policy

If you don’t have anything nice to say, be sure to say it in the name of public interest.

The Supreme Court of Canada recently changed defamation law with its ruling in Grant v. Torstar. The case dealt with allegations that a wealthy land developer in Northern Ontario had bypassed regular government approval procedures for building a golf course, courtesy of friends in high places.

The Charter of Rights and Freedoms guarantees freedom of expression. But there’s a limit to what one can express.

Under defamation law, if a statement unjustifiably compromises a person’s reputation, that person can sue for damages.

In recent years, there has been concern that defamation law has resulted in media outlets suffering “libel chill.” The suggestion is the media have toned down or left out what they wished to say, for fear of being sued.

In the Grant v. Torstar decision, the Supreme Court created a new defence to defamation. This “responsible communication” defence effectively expands the freedom of expression afforded to media and opens the door to more frank discussion of matters of public policy.

To succeed, the new defence requires that the publication must be a matter of public interest, and the publisher must have been diligent in trying to verify the allegations. Factors to be considered when measuring diligence are:

  • the seriousness of the allegation
  • the public importance of the matter
  • the urgency of the matter
  • the status and reliability of the source
  • whether the plaintiff’s version of the story was asked for and accurately reported
  • whether including the defamatory statement was justifiable
  • whether the statement’s public interest lay in the fact that it was made rather than its truth
  • other relevant circumstances.

In other words, it is now possible to inaccurately report something of public interest, but have a viable defence to defamation so long as you take steps to get your facts straight at the outset.

This change is unlikely to result in a media free-for-all. In the decision, Chief Justice Beverley McLachlin cautions “The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.”

It is noteworthy that bloggers are explicitly included in this test. Whatever uncertainty existed previously about allegations in cyberspace, the law is now clear: if you make controversial claims, you must do due diligence, however you publish them.

Online rules out of line, critics say

For the London Free Press – November 16, 2009

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BLOGGING: Proposed U.S. guidelines would hold bloggers to ethical standards

The U.S. Federal Trade Commission recently proposed new guidelines pertaining to transparency in blogging.

Under the guidelines, bloggers who make an endorsement would have to disclose any material connections they share with the seller of the product or service.

This would mean that any freebie a blogger receives would have to be fully disclosed to readers. And anytime a product is mentioned, any connection with the manufacturer would also have to be disclosed.

If the guidelines are adopted adopted, it would be the first time bloggers were brought under commission guidelines and the first time the FTC could go go after bloggers for “false claims” or “failure to disclose conflicts of interest.”

Bloggers are currently not held to any ethical guidelines, as compared to the ethical standards of journalists. Bloggers would be required to disclose affiliations with sponsors and marketers and any free giveaways they receive. The proposed penalty for violating the rules: a fine of as much as $11,000.

The Internet Advertising Bureau (IAB) has been one of the strongest and most vocal critics of the guidelines.

In an open letter to the FTC, the IAB claims — and rightly so — that the guidelines unfairly regulate online media without doing the same for offline media.

IAB president and chief executive Randall Rothenberg is outraged by the guidelines and insists that, despite the FTC’s argument that the guidelines are for “education”, they simply provide a means for the FTC to pursue bloggers.

Rothenberg’s criticism centres on the unfair treatment of online social media:

“The (guidelines) do allow you to pursue bloggers. They do hold individuals more liable than larger corporations. They do explicitly say online social media have less protection than offline corporate media,” he says.

“They do obstruct online companies’ opportunities to drive cultural conversation more than offline companies’. They do threaten with prosecution book publishers, movie producers, and other companies that supply products to individual social media conversationalists.”

As Rothenberg notes, the bigger problem is that offline media are not held to the same restrictions. This unfair treatment of one medium and not another is alleged to violate the U.S. Constitution’s First Amendment.

Free speech and freedom of the press have been long entrenched in U.S. society as protectors of traditional media. It makes little sense to stifle online media, which has the potential to reach millions of people worldwide.

Despite these legal challenges, problems also arise because the guidelines may be impossible to follow.

And perhaps the most ludicrous issue is prosecution: the Internet is full of bloggers whose numbers change radically from day to day. How the FTC plans to enforce its proposed guidelines is unclear.

And blogging seems to have some inherent self-regulation, making one wonder why these guidelines are needed at all.

If a blogger continually prom-otes a product, it will quickly become clear if the product’s manufacturer is behind the promotion, resulting in loss of credibility.

This is another example of why new ways of doing things should always be evaluated with an eye toward how similar, existing ways are already treated.

Personal expression can lead to trouble

For the London Free Press – April 14, 2008

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Facebook, blogs and other social media have made everyone a publisher. Anyone can post their thoughts for the world to see.

But a recent criminal prosecution over comments made on Facebook is a reminder that if one is not careful, that personal expression could result in criminal or civil liability.

On Facebook and other sites that link “friends” together, people often forget that — depending on your privacy settings — your information may be seen by more than just your network of friends. Complete strangers might be able to read messages you believe to be personal.

Within many communities, online or offline, there can be a tendency to embellish information people post about themselves. Some may adjust their age, while others may exaggerate their accomplishments or travels. There are also those who may overstate their emotions or use posts to vent about things that have upset them throughout the day. If you take your venting too far, it could get you into trouble.

In a recent Ontario case, a York Region man was charged with two counts of threatening to cause death because of postings he had made on Facebook. The Children’s Aid Society had removed the man’s son from the custody of the man and his wife due to concerns they would not be able to properly care for the child.

In a series of messages posted online between September and November 2007, the man made statements that were considered threatening by both CAS staff and the police. A CAS employee discovered the messages when she happened to search Facebook for references to her employer.

The trial judge determined the man did not intend to carry out his threatened action and therefore he was found not guilty of the offence. However, the judge also acknowledged that hospital staff, CAS staff and police had acted reasonably in treating the matter in a necessary and appropriate manner.

While most people would not go so far as to post threatening comments, we should remember to temper our thoughts when publishing them in any online forum. Venting is fine, but don’t cross the line into territory that could be considered threatening or defamatory. Doing so can open one up to criminal or civil liability. And that comment that seemed like a good idea at the time may be just embarrassing later.

One reason it is so easy to cross the line is the speed at which we can post information. We can publish our thoughts for the world to see within minutes or seconds. Unlike mailing a letter to the editor, that process does not give us the time to reflect and consider whether it really is a good idea to say something.

So next time you feel the need to vent or complain online, write it, but hold off actually publishing it for a while. Perhaps the exercise of just writing it will give you enough satisfaction. And the wisdom gained over a night’s sleep might result in changing your mind about how you word it, or indeed if you want to publish it at all.

Are blogging policies necessary?

Kevin O’Keefe’s Real Lawyers Have Blogs has a post about whether organizations should have blogging policies. It as attracted a few comments, including one from me.

My position is that it is a good idea for organizations to have a blogging policy, but it should be made part of a wider technology use policy that covers the appropriate use of technology in general. While one can argue that existing rules and common sense should be sufficient to cover employee use of blogs and social media (eg Facebook) , it doesn’t always work that way in practice.

Read Kevin’s post and comments

IOC dragged into the ’90′s on blogging

While I do have some sympathy for the IOC’s desire to maximize TV revenue from the Olympic games, the IOC always strikes me as being about a decade behind in their rules about things like event video on Web sites, and blogging.

The IOC has just released its rules on what athletes can and can not do on their blogs. Techdirt sums it up by saying: First Rule: No Blogging Anything Interesting

Frankly, watching Olympic events is not a zero sum game. How many of us have the time or inclination to watch hours of TV every day during the Olympics? If people turn to websites or blogs to get their Olympic news or watch a winning performance in a sport they are interested in, it doesn’t have to mean that TV viewing/revenue will drop.

Read the Techdirt post for the details

Opposition grows to proposed copyright law

For the London Free Press – January 28, 2008

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At the end of 2007 the Canadian government stood poised to introduce a new copyright law that many feared would amount to a sell-out to the demands of lobbyists and the United States government.

While the issue was largely ignored by traditional media, word began to spread online, primarily through two relatively new sources of information: blogs and Facebook.

The feared changes would affect the rights of large numbers of Canadians who utilize copyrighted materials in numerous ways.

Word of the potential changes was initially spread via blogs, one of the most vocal critics being University of Ottawa law professor Michael Geist. The initial warnings from various blogs increased awareness among online users. The blogs also provided information on ways to fight the contemplated legislation and kept readers up to date on new developments.

On Dec. 1, Prof. Geist founded a Facebook group called Fair Copyright for Canada in an attempt to spread awareness. Within two weeks the group had over 20,000 members.

The remarkable growth of the group had two immediate effects. The first was an increase in awareness of the issues. The second, while not as direct, was more far-reaching. The rapid growth of the Facebook group became a news story in itself, exposing the issues to a significantly larger segment of the population. The story initially focused on the use of the social networking site as a political tool. But the story also focused on the message as well as the medium.

Suddenly the potential change to copyright law was a major news story.

Then something remarkable happened. On Dec. 13, 2007, the government decided to delay the introduction of the legislation. There is hope the government decided to modify the legislation in the face of this unexpected groundswell of grassroots opposition. Some fear, however, that the government has only delayed in the hopes that interest in the issue will die down.

If the latter is true, that hope is unlikely to be fulfilled. The group continues to grow, membership now sits at about 40,000.

In addition to raising awareness, Facebook has proved to be a useful tool for organizing efforts to oppose the legislation. The Fair Copyright for Canada group has spawned a number of local chapters across the country. t has provided a forum for individuals to come together with others who share their concerns and led to several organized local events including educational opportunities and meetings with local MPs.

The groundswell of opposition is not without its critics. Some question how many, and to what extent, those who oppose the changes and join the group truly understand the issues at hand.

While not everybody who stands opposed fully understands the issues, the same is true of nearly any cause that engenders significant numbers of supporters. What can’t be denied is the effectiveness of the use of blogs and Facebook in bringing this issue to the attention of large numbers of Canadians, and its effect on the political process.

Social websites can easily backfire

For the London Free Press – August 6, 2007

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Beware of what you post online — you never know who is looking.

In what is being described as the first Canadian case that refers to MySpace, an Ontario judge stated that a defendant was free to use the MySpace pages of a plaintiff to cross examine the plaintiff at trial.

In this case, the plaintiff alleged she sustained serious and permanent physical injuries as well as emotional and psychological trauma in a motor vehicle accident. To be successful in the case, she had to show that she had sustained a permanent serious impairment of an important physical, mental or psychological function.

After discoveries, but before trial, the defendant found the plaintiff’s MySpace page, which, among other things, had pictures of her skiing in the Swiss Alps after the accident. The defendant no doubt took delight in finding this and being able to use it to cross examine the plaintiff to cast doubt on the severity of the injuries.

The rise of blogging and social network websites such as MySpace and Facebook has made personal information about individuals all the more accessible. Individuals join these social networking groups with good intentions to meet new friends, maintain on-going friendships or rekindle old ones. They post private information, pictures and messages in the spirit of being social.

Many users treat these sites similar to personal conversations with close friends. While there is some ability to restrict access by everyone, the reality is that they are conversing with the world and preserved in the Internet forever.

When individuals post this personal data, they tend to forget how broadly that information is available.

Anyone wanting to know something about an individual for any legitimate reason should take advantage of this. It might be a personal injury case such as this one, or to check out a job applicant, or a contractor you wish to hire to do a particular job.

The tools to use include search engines such as Google, personal data aggregation sites such as Zoominfo, and social networking sites such as Facebook, MySpace, and LinkedIn.

Some caution is required though. Stick to publicly available information. Don’t hack into places meant to be private. Don’t resort to “pretexting,” or pretending to be the person you’re interested in, to get information. It’s also possible you could be accused of discrimination if a decision not to hire someone is based on information you’re not supposed to use.

And individuals posting information about themselves on the Internet should be mindful that it may be viewed by a wide audience. The immediacy of the Internet is one of its advantages, but also eliminates any time we might have to reflect on the appropriateness of our postings.

That comment or photo that may seem innocuous at the time may come back to haunt you. “It seemed like a good idea at the time” is little use as a defence or explanation later.