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Lawsuits Put Online Free Speech At Risk

Appeared in the Toronto Star on April 30, 2007 as Lawsuits Put Online Free Speech At Risk

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 libeled 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, a site that the suit claims hosted defamatory content (Crookes has also sued

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 involves the inclusion of a U.S.-based service called Domains By Proxy in the lawsuit.  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 by-standers 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 or online at


  1. I think someone’s head is a little too big for his own good. I’m surprised he hasn’t included Bell, Shaw, Rogers, etc in the lawsuits for allowing the packets of data containing the (supposedly) defamatory comments to be transmitted between the posters and the websites.

  2. Electrons
    Wayne Crookes should sue electrons because ultimately those little bastard particles are responsible… damn those electrons and their proton brothers.

  3. Ballots
    No, he should sue Athens for the invention of democracy, wherein a person engaged in politics might be criticized and made fun of, so as to make others consider removing him from a position of public trust. Why not sue those who count ballots? After all, each ballot that does not include a vote for Crookes or his friends, could be considered a defamation of their ability to rule.

    So could each piece of campaign literature promoting opponents, which is the most chilling thing.

    Paul Martin found out that saying he would sue Stephen Harper (for describing the Liberal Party of Canada as “organized crime”) only backfired. Crookes should now discover the very same thing.

  4. unbeliever says:

    get a wiki or something
    You need to unify your comments somehow. Maybe copy all the interesting points over to a wiki page since there’ll be more news on this. Most of the comments on this are over on the full version of your column, as is appropriate:

    [ link ]

    and more are on your noting of Crookes’ reply in the Star

    [ link ]

    The main thing they mention is that you have failed to make a point of the political nature of the commentary and the possible chill on all political speech. All over the world, people rely on US service providers and laws to let them criticize unfair and abusive local practices. There is only one fit standard for all reporters on the global Internet: The UN Declaration of Universal Human Rights which includes press freedoms and freedom of expression. This is explicitly cited in the Google shareholders resolution from the pension funds of the New York City firefighter and police and other employees’ unions (see link below).

    If there’s any element of these many cases which is political in nature (and there certainly appears to be, as Mr. Crookes demanded of Yahoo that the gpc-members yahoogroup be deleted DURING that Green Party’s internal elections) then courts have no business intervening or ordering disclosure or censure.

    Do you want rich people to go to your town hall meeting and silence and impoverish those who speak against their views, maybe having them literally gagged and thrown out? Do you want Chinese “businessmen” doing this via BC, with the dissidents not just thrown out but tortured and killed? That’s what you invite, if you treat this as “defamation” and not what it is, real politics.

    Of course no one wants personal defamatory comments to be free to make anywhere. Nor businesses to be lied about with false statements of fact. But neither of those things have occurred: To judge from the briefs, no one has criticized Crookes’ personal life, no one has said a word about his business other than that he owns it.

    By the standards that apply in the US, this is NOT a defamation case. It’s a political chill disguised as a defamation case.

    Let’s hope proposal 5 passes:
    [ link ]

    The NYC 9/11 widows and disabled know where they stand. They know what prevents future politically motivated attacks on their city: wide latitude for freedom of all political speech anywhere in the world. Even revolting backwaters such as British Columbia, built on land stolen (from natives and Japanese-Canadians) within living memory.

  5. Xeno77777 says:

    What is this fellow Crookes trying to do, shut down all public and private comment, even folks just saying that they do not like Crookes? US President and Founding Father, and author of the US Declaration of Independence Thomas Jefferson was subjected to the worst comments imaginable in polite, and even impolite, society; and he still supported freedom of the press, and never complained of how he was abused in the press even as US President! Libel Laws are merely an old world substitute for challenges to duels, and old world anti-freedom measures. US Public Figures have very limited ability to sue for Libel according to US Supreme Court rulings. I wonder how someone intends to sue for libel in the US? Or even to sue for their assets in Canada. If their assets are illegaly seized, by US Law, it could constitute a Causus Beli for the US Military to over run Canada, which by not allowing extradition of Anti-Trust papers of some oil company’s conspiracy against Westinghouse in the 1960s, has already supplied one such Causus Beli.

  6. Anonymous says:

    Michael: Thanks for the interesting article. I have one question, though… I haven’t read ANY of the other material about this guy, so I know absolutely nothing about the details. Instead, I’m putting myself in his position. Say, somebody posts a website saying that I’m a proven child molester or something like that. It’s totally untrue, I accuse them of libel and try to get them to stop. Lots of other sites link to it, it ends up in Wikipedia’s summary of me, MySpace let’s someone dedicate a whole space to talking about me as child molester, you let people leave comments indefinitely on your site saying this terrible thing about me and linking to the other sites as ‘proof’ etc etc. Would you suggest, really, that none of these people, organizations etc other than the people actually writing the claims should be held liable? Instinctively, I feel like, darn tootin, I should be able to sue Yahoo and MySpace if they’ve received the heads up and they go on letting it be done… Just like I could sue a newspaper, not just the writer, for running that story. The reality is, libelous info on the web is actually far more dangerous (i.e. widespread and enduring) than in some one-time local print publication… What are your thoughts on this?


  7. Bill Hulet says:

    Someone who signs his name
    Mr. Geist:

    Is there a positive answer to this issue? I don’t think that it is enough for experts in this field to just comment that these lawsuits will cause problems for service providers. Shouldn’t society deal with the legitimate concerns that have been raised by this lawsuit (and the far from hypothetical example raised by “Rob”.)

    In politics a person’s reputation is not only the most important asset a person has, it is just about the only one he has. If we allow people on the internet free reign to push the sorts of lies that would never be allowed on the printed page, we are giving a loaded revolver to every sleaze-bag who wants to torpedo someone else’s career. (Think about the “Swiftboat Veterans for Truth” and their campaign against John Kerry.)

    I’ve heard a lot of people say that the only response is to fight fire with fire. Well, that’s a great way to turn people off of politics altogether—because almost no-one wants to hear about politicos playing a game of tit versus tat.

    How about Mr. Geist suggesting a practical alternative to lawsuits if he’s going to oppose them?

  8. Standards for Polite, Rational Civil Dis
    People should be allowed to say what ever they want, so long is it uses polite language, includes no known falsehoods, and shows itself to be reasonable, uses no known swear words, no known slanderous racial or other stereotyping, etc., and makes an effort to use some sort of scientific or historical or philosophical evidence or justification, and does not use any Neo-Platonism\’s Irrational Allegorical Method, which can use anything to \”prove\” anything else, in the style of fictional inventions, and having abandoned rationality, has no means of resolving the disputes that inevitably arise, so can only Shun, until ready to launch Violent Surprise Attacks, such as; 9/11, the Huguenot and Jewish Holocausts, the Cambodian Western Contact Holocaust, of all who had any Western Contacts, even dentistry or wearing glasses, or living in cities, or taxi or truck driving: even the North Vietnamese Communists thought this to be viciously irrational criminality. The obviously irrational, should be expunged, as should all use of irrational, and items that are mere stereotypical labeling, with no real meaning, or attempt to explain and/or justify their use, that amounts to repetitious, undefined, meaningless, talk radio label garbage, that can show no scientific evidence of rational application to anything or person at all. Really just garbage swear word cussing and Slanders intended to raise and incite Lynch Mobs, modeled on Baalam (Priest of Baal) of Peor (a little village still there today on the Eurphrates): see the Baalam\’s Donkey story in Numbers; Baalam was hired to Curse the people of God, Moses Israelites, and raise all the peoples of the entire region to come and Lynch the People of God, Falsely for Self Defense and Profit. Such Biblical Cursing the People of God (attempting to Raise a Lynch Mob against them,) is one of at least Four Unforgivable Sins in the Bible. Read of Baalam\’s story and ultimate condemnation and fate. See Ernest Barker\’s \”Traditions of Civility,\” especialy last long essay.