The Rivoli, a well-known Toronto club, may seem like an unusual venue to consider Internet free speech. Yet later this week, it will play host to a fundraiser in support of P2Pnet.net, a British Columbia-based website that is being sued for defamation for comments posted on the site by its readers.
The suit, launched by Sharman Networks’ Nikki Hemming, has attracted considerable attention because of the parties involved (Sharman Networks is the owner of Kazaa, the peer-to-peer file sharing service that last week agreed to pay the entertainment industry over $100 million to settle ongoing litigation) and because it highlights the vulnerability of thousands of Canadians to defamation lawsuits merely for providing access to other people’s comments.
Both Sharman Networks and Hemming sued P2Pnet last spring, claiming that an article and accompanying comments posted by readers of the site were libelous. Jon Newton, the owner of the site, has vigorously disputed the suit, pointing to the need to protect free speech and to ensure that defamation laws cannot be used as swords to create an online chill. Sharman Networks recently dropped its claim, however the Hemming suit continues.
The case places the spotlight on the liability of Internet intermediaries. The importance of the issue extends well beyond just Internet service providers – corporate websites that allow for user feedback, education websites featuring chatrooms, or even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law.
The difficult question is not whether these sites and services have the right to voluntarily remove offending content if they so choose – no one doubts that they do – but rather whether sites can be compelled to remove allegedly unlawful or infringing content under threat of potential legal liability.
The answer is not as straightforward as one might expect since Canadian law varies depending on the type of content or the nature of the allegations. In the case of child pornography, the Criminal Code does not require a site to remove content based merely on an unproven allegation. Instead, sites can only be compelled to remove such content under a court order. The same is true for other unlawful content such as hate speech.
Allegations of copyright infringement similarly do not require a site to remove contested content. Liability would depend on whether the site can be said to have authorized visitors to infringe copyright. The Supreme Court of Canada has set a high threshold to determine when a party "authorizes" infringement. Merely hosting content, even after being made aware of an unproven infringement allegation, is unlikely to meet that standard.
Moreover, Canadian content owners and ISPs have operated under a voluntary "notice and notice" system for the past few years whereby content owners can forward allegations of infringement to an ISP, which in turn forwards the allegation to its subscriber (whose identify is not revealed). An ISP would typically only face liability if it failed to abide by a court order to remove content.
The role of judicial oversight for illegal and infringing content in Canada is essential, since it strikes a balance between preserving free speech on the one hand and ensuring that harmful content can be taken offline in appropriate circumstances on the other.
However, as P2Pnet has learned to its chagrin, allegations of defamation are the exception to the rule. Under current Canadian law, intermediaries can face potential liability for failing to remove allegedly defamatory content once they have received notification of such a claim, even without court oversight.
As a result, many ISPs and websites remove content in response to unproven claims, even if they privately doubt that the content is indeed defamatory. From the company’s perspective, there is no legal risk to remove the content, yet there is potentially significant risk for failing to do so.
Given how easily content can be forced off the Internet with claims of defamation, the law creates a significant chill on free speech in Canada. Intermediaries are understandably reluctant to ignore threats of litigation, yet without a legal safe harbour that protects them from liability, it is likely that the number of questionable defamation claims will continue to rise.
Addressing the free speech chill would require legislative change. For example, the United States enacted a law ten years ago that provides broad immunity for intermediaries that host third-party content. That provision has since been used dozens of times to immunize ISPs, large companies such as Amazon.com, and small websites who could ill-afford to fight legal challenges.
A similar provision in Canada would protect sites such as P2Pnet, as well as the thousands of Canadian ISPs, websites, and bloggers, who are contributing to a robust online dialogue, but today find themselves vulnerable to lawsuits whose primary purpose may be to suppress legitimate speech.
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 firstname.lastname@example.org or online at www.michaelgeist.ca.