Over at Inforrm’s Blog, Gervase de Wilde comments on the recent UK High Court decision of HHJ Parkes QC in Davison v Habeeb ( EWHC 3031 (QB)) dated 25 November 2011 [“Davison”] involving online intermediary liability and jurisdictional issues in UK defamation actions.
In this post, I will briefly address the broader implications of online regulation and intermediary liability.
In Davison, the claimant, Andrea Davison sued Google Inc., among others, for defamation relating to an article published in The Palestinian Telegraph and republished on various blogs , including one hosted on Blogger, alleging ““ill specified fraudulent activities” relating to a conspiracy involving various public figures. Davison sued Google on the basis of its ownership and control of the Blogger platform.
Master McCloud in an Order dated 20th January 2011 granted the claimant permission to serve the Claim Form on Google outside the jurisdiction. Google then applied to set aside the Order on the ground of lack of jurisdiction.
Ultimately, Parkes QC set aside the lower court order for lack of jurisdiction. The learned justice notes,
68. My conclusion is that there is no realistic prospect of the claimant establishing that the notification of her complaint fixed [Google] with actual knowledge of unlawful activity or information, or made it aware of facts or circumstances from which it would have been apparent to it that the activity or information was unlawful. [Google] was faced with conflicting claims from the claimant and the second defendant between which it was in no position to adjudicate. That is of course not to say that a different conclusion could not be reached on different facts, such as where (to adapt the words of the ECJ) a complaint was sufficiently precise and well substantiated, and where there was no attempt by the author of the defamatory material to defend what had been written. But on the present facts, which are not in any material respect in dispute, in my judgment there is no good arguable case, having regard to Reg.19 of the 2002 Regulations, that Google is liable in damages or for any other pecuniary remedy in respect of the publication of the words complained of on Blogger.com, whether before or after notification by the claimant of her complaint.
69. That of course leaves open the question of an injunction, on which I have not heard argument. It seems to me improbable, for reasons which it is hardly necessary to state, that an injunction granted by this court against a US corporation in a defamation matter involving First Amendment rights would be enforceable against the fifth defendant. Moreover, given that the claimant (if she makes good her case) has remedies in this jurisdiction against the second and third defendants, including injunction, there is plainly an argument that it would be disproportionate to join [Google] for that reason only, especially since [Google] has taken down the only articles which the claimant identified before the issue of proceedings as being defamatory of her. However, those are no more than provisional views, and I will hear argument on the point if requested to do so.
In a recent post, Mathew Ingram at gigaom.com wrote about the Stop Online Piracy Act, introduced in the House, empowering governments and private corporations to remove websites and deputizing internet service providers to become the copyright police. Ingram writes,
To recap a bit of history, the Stop Online Piracy Act or SOPA is the House version of aprevious bill proposed by the Senate, which was known as the PROTECT-IP Act (a name that was an abbreviation for “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property”). That in turn was a rewritten version of a previous proposed bill that was introduced in the Senate last year. Not wanting to be outdone by their Senate colleagues when it comes to really long acronyms, the House version is also known as the E-PARASITE Act, which is short for “Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation.”
Copyright holders win, free speech and an open Internet lose
What it really is, however, is a disaster for the internet. As the Electronic Frontier Foundation notes in a post on the proposed legislation, the law would not only require ISPs to remove websites from the global network at the request of the government or the courts (by blocking any requests to the central domain-name system that directs internet traffic), but would also be forced to monitor their users’ behavior in order to police acts of copyright infringement. Providers who do not comply with these requests and requirements would be subject to sanctions. And in many cases, legal hearings would not be required. As Senator Ron Wyden (D-Oregon) said of the PROTECT-IP Act:
At the expense of legitimate commerce, PIPA’s prescription takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet.
In effect, the new law would route around many of the protections in the Digital Millennium Copyright Act, including the “safe harbor” provisions (a number of law professors have said that they believe the proposed legislation would be unconstitutional because it is a restraint on freedom of speech). The idea that ISPs and internet users can avoid penalties if they remove content once they have been notified that it is infringing, for example, wouldn’t apply under the new legislation — and anyone who provides tools that allow users to access blacklisted sites would also be subject to penalties.
So much for the adage “information wants to be free.”
In another development, the Wall Street Journal’s Julia Angwin reported on the U.S. government’s recently obtained secret court order forcing Google Inc. and a small Internet provider Sonic.net Inc. to hand over information from the email accounts of WikiLeaks volunteer Jacob Appelbaum:
Mr. Applebaum is a developer for the Tor Project Inc., a Walpole, Mass., nonprofit that provides free tools that help people maintain their anonymity online. Tor’s tools are often used by people living in countries where Internet traffic is monitored by the government. Tor obtains some of its funding from the U.S. government.
Mr. Appelbaum has also volunteered for WikiLeaks, which recommends people use Tor’s tools to protect their identities when submitting documents to its website. In April 2010, Mr. Appelbaum’s involvement in WikiLeaks was inadvertently disclosed publicly in a blog post on the website of the Committee to Protect Journalists. The reporter, Danny O’Brien, said Mr. Appelbaum had thought he was speaking anonymously. Mr. O’Brien said he later offered to remove Mr. Appelbaum’s name from the post.
While Google has since capitulated, Twitter is not so accommodating:
On Jan. 26, attorneys for Mr. Appelbaum, Mr. Gonggrijp and Ms. Jonsdottir jointly filed a motion to vacate the court order. They argued, among other things, that because IP addresses can be used to locate a person in “specific geographic destinations,” it constituted a search under the Fourth Amendment and thus required a warrant.
The government argued that IP addresses don’t reveal precise location and are more akin to phone numbers. At a Feb. 15 hearing, Assistant U.S. Attorney John S. Davis said, “this is a standard… investigative measure that is used in criminal investigations every day of the year all over this country.”
On March 11, U.S. Magistrate Judge Theresa Carroll Buchanan denied the WikiLeaks supporters’ motion. They have appealed.
Twitter hasn’t turned over information from the accounts of Mr. Appelbaum, Ms. Jonsdottir and Mr. Gonggrijp, according to people familiar with the investigation.
(See also my related posts: Wikileaks, Twitter and the DOJ: Much Ado About Nothing? and What If Twitter Were a Canadian Company Instead?)
On the Canadian front, the Office of the Privacy Commissioner of Canada posted an open letter by Jennifer Stoddart, Federal Privacy Commissioner to Vic Toews, Minister of Public Safety outlining her “deep concerns about potential lawful access legislation.” Stoddard wrote,
Canadians expect their government to respect their fundamental rights and freedoms. Your government has made firm and repeated commitments to the importance of privacy. Consequently, when new surveillance powers are proposed in law, the burden of proof is with government to demonstrate the necessity, legal proportionality and practical effectiveness of these new powers. The government must also be prepared to demonstrate how the model it is proposing is the least privacy-invasive alternative possible.
Despite repeated calls, no systematic case has yet been made to justify the extent of the new investigative capabilities that would have been created by the bills. Canadian authorities have yet to provide the public with evidence to suggest that CSIS or Canadian police cannot perform their duties under the current regime. One-off cases and isolated incidents should not prove the rule, nor should exigent or emergency circumstances, for which there are already Criminal Code provisions.
As well, if the concern of law enforcement agencies is that it is difficult to obtain warrants or judicial authorization in a timely way, these administrative challenges should be addressed by administrative solutions rather than by weakening long-standing legal principles that uphold Canadians’ fundamental freedoms.
I am also concerned about the adoption of lower thresholds for obtaining personal information from commercial enterprises. The new powers envisaged are not limited to specific, serious offences or urgent or exceptional situations. In the case of access to subscriber data, there is not even a requirement for the commission of a crime to justify access to personal information – real names, home address, unlisted numbers, email addresses, IP addresses and much more – without a warrant. Only prior court authorization provides the rigorous privacy protection Canadians expect.
Toews responded to Stoddard’s letter with the typical “Law & Order” agenda rationale (via canada.com):
Toews was quick to shoot down Stoddart’s concerns in an ongoing battle that pits the government against consumer advocates and privacy experts.
“Our approach strikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard the privacy of Canadians,” Toews said in a statement Thursday in response to Stoddart’s letter.
“As technology evolves, many criminal activities — such as the distribution of child pornography — become much easier. We are proposing measures to bring our laws into the 21st Century and provide police with the tools they need to do their job.”
Stoddard’s provincial counterpart, Dr. Ann Cavoukian, Ontario Information and Privacy Commissioner, also posted an open letter to Toews and Minister of Justice and Attorney General of Canada Rob Nicholson., warning the federal government of the serious implications of proposed “lawful access” legislation. ”The proposed powers must not come at the expense of the necessary privacy safeguards guaranteed under the Canadian Charter of Rights and Freedoms,” Commissioner Cavoukian said.
Website owners are the fulcrum between the freedom of expression and protection of one’s reputation. Many website owners endeavour to promote online community standards. Where an internet service provider acts in good faith in improving the online community, one may argue that it is entitled to be shielded from liability for defamatory content; particularly if it was unaware and did not actively incite or propogate the cyberlibel.
In my view, hyperlinkers may well be intermediaries; the question is whether the website, blog, or online forum provides and encourages access to third party defamatory content via hyperlinks.
Part of the problem is that online activity attracts different levels of judicial and legislative scrutiny, both public and private in nature. As Lilian Edwards and Charlotte Waelde, in “Online Intermediaries and Liability for Copyright Infringement” (Keynote paper presented at the WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO)) at pp. 5 note:
The different issues of policy raised by these different classifications of authorship and types of content were largely not teased out systematically in the early jurisprudence, leading to widely differing regimes being imposed both in different legal systems and within the same legal system but in differing scenarios, depending on the type of offending content in question. Early case law also referred unsystematically to “ISPs”, “bulletin boards”, “online publishers” and similar terminology.
This lack of harmonisation in the emerging case law led to calls from industry for some form of rescuing certainty in the form of special statutory regimes from as early as the mid 1990s. As discussed below, over time, the debate over liability for online intermediaries came to be seen less as tied to different types of content – libel, pornography, material infringing copyright, material invading privacy – and more as a holistic problem of whether intermediaries on the Internet should in general be made responsible for the content they made accessible to the public, transmitted or stored.
Similarly, consider the OECD DIRECTORATE FOR SCIENCE, TECHNOLOGY AND INDUSTRY COMMITTEE FOR INFORMATION, COMPUTER AND COMMUNICATIONS POLICY REPORT: THE ROLE OF INTERNET INTERMEDIARIES IN ADVANCING PUBLIC POLICY OBJECTIVES: Forging partnerships for advancing policy objectives for the Internet economy, Part II (DSTI/ICCP(2010)11/FINAL, 22-June 2011, where the authors observe,
“The notions of intermediary and content provider are increasingly blurred, especially on participative networking sites, raising the question of how legal frameworks should respond.
Depending on the specific roles and services provided by intermediaries, when questions regarding liability limitations are assessed, attention may be paid not just to the intermediary’s knowledge, but also to its neutrality and the financial gain derived from hosting or linking activities. These considerations can require a more subjective case-by-case assessment of whether they qualify for
limitation of liability, and may increase uncertainty for intermediaries and other interested parties operating in an ever-changing environment.
• There are questions about whether new types of intermediaries or intermediaries whose role has increased (search engines, social networking sites), and perhaps others yet to emerge may need
distinct safe harbours. In addition to different categories of intermediary activity (hosting, conduit, linking, etc.), there are questions about whether small and large intermediaries need different rules for their role in addressing illegal activity on their platforms.
• Rules limiting their liability can encourage co-operation by Internet intermediaries, thereby promoting the Internet as a trusted medium for commerce and speech. (at p.6)
The OECD Rapporteurs add,
Many intermediaries do not operate in traditional market contexts
Although much of the focus of this report is on major market players that operate as intermediaries in some way, it is important to recognise that a majority of online intermediaries operate in a non-financial or a minimally financial context. Any individual who operates a blog for his or her friends or local community (using, for example, a blogging platform such as blogger.com) can be considered an Internet intermediary operating a platform that helps to enable communication. Indeed, blogs “give access to, host,transmit and index content originated by third parties”, as do websites that allow users to post comments (including the websites of NGOs, governments, news sites, etc.).
Although some individual and non-commercial blogs and websites also run simple advertisements, the presence of ads does not transform the site into a commercially focused or driven operation. The focus and goal of these sites is generally not to maximise ad revenue, but to provide a communication forum for a select group of people.
Thus, any consideration of liability, incentives or other obligations on intermediaries must take into account the fact that many intermediaries are non-commercial sites operated by individuals or small organisations that lack the resources to comply with many legal or liability-based constraints.(at pp.26-27)
More promising is the Supreme Court of Canada’s recent decision in Crookes v. Newton, 2011 SCC 47 (SCC) offering website owners, bloggers and forum moderators some measure of comfort by declining to impose intermediary liability for hyperlinking to defamatory content, which the Court held does not constitute re-publication unless the alleged libel is endorsed or repeated. (See my previous posts: Supreme Court of Canada grants leave in internet hyperlink defamation case: Crookes v. Newton and “I link, therefore I defame?” Not so, says the British Columbia Court of Appeal).
In Crookes v. Newton, Deschamps J. pointed out that the U.S. Communications Decency Act, 47 U.S.C. §230 (1996) only exempts ISPs and website owners from liability for their passive, as opposed to active, conduct. The issue of hyperlinking is not fully resolved, as Abella J. notes,
 I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.
Ultimately, judicial and legislative efforts to coerce online platforms, such as Blogger and WordPress, into acting as the “Internet Police”, are both ill-advised and illiberal to concepts of net neutrality and the free flow of information. Imposing liability on blogging platforms, even in limited circumstances, will likely have unintended consequences. UK bloggers may be subject to internet access blocking by court order, with the threat of contempt proceedings always looming to stifle free speech. Alternatively, Blogger and WordPress may simply vote with their corporate feet and limit their presence in the UK or European markets. At best, UK bloggers may flock to safe harbor jurisdictions, primarily the United States, that have robust free speech protection under the First Amendment, including the “Securing the Protection of our Enduring and Established Constitutional Heritage Act” (viz. SPEECH Act” s. 3518) and s.230 of the Communications Decency Act: (See my guest post on Inforrm’s Blog: “A Canadian Perspective on Libel Tourism”).
Instead of imposing liability or delegating a gatekeeper function to online intermediaries, it is preferable to allow aggrieved parties to follow the complaints procedures under the WordPress “Disputes: Defamation, Court Orders, Subpoenas, Privacy” policy or Google’s Blogger Content Policy. Take note, however, that unlike Yahoo! or Twitter, Google does not have a law enforcement compliance policy; rather, “Google complies with valid legal process. It is Google’s policy to notify users before turning over their data whenever possible and legally permissible.” Caveat surfer.
Defamation law is a private cause of action. While “libel tourism” or “forum shopping” is a problem in the UK, so too is enforcement of UK defamation judgments and contempt orders abroad. Besides, not all bloggers care about financial gain. To paraphrase the late Prime Minister Pierre Trudeau: “The government has no business in the chatrooms of the nation.”
- The Protect IP Act is a very bad idea (furiouspurpose.me)
- SOPA, Stop Online Piracy Act, Stirs Controversy (current.com)
- Congress coming close to destroying the Internet (socialmedia.biz)
- The PROTECT IP Act Is Very Real and Very Bad – Call Now to Block It (newsworldwide.wordpress.