This is a story I wrote on bloggers and libel that appears in Saturday’s Globe and Mail. The newspaper version is here. Thanks to Chris “Zeke” Hand of Zeke’s Gallery and to Michael Geist for their help with the story.
Many bloggers dream of getting mainstream recognition for their work, but unfortunately for some, the attention they’re getting comes in the form of a lawsuit instead of media-star status. Earlier this week, Steelback Brewery president Frank D’Angelo filed a $2-million libel suit against Ottawa-based blogger Neate Sager for making what he says are disparaging comments about him.
In another recent case, Montreal art-gallery owner Chris (Zeke) Hand has found himself on the receiving end of a lawsuit as a result of something he wrote on the blog he maintains for Zeke’s Gallery. Warren Kinsella, a prominent blogger and newspaper columnist, sued another blogger for libel last year, but settled the case after the blogger apologized for his remarks and paid Kinsella’s legal costs.
And p2pnet, a British Columbia-based news site that writes about file-sharing, is still fighting a libel lawsuit launched by Kazaa tycoon Nikki Hemming based on comments that were posted on an article about the company.Hand’s ordeal started last November, when he posted an item on the Zeke’s Gallery blog about a competing gallery owner who sold fake paintings to Loto-Québec (something that was also mentioned in several media stories at the time).
In April, the blogger was contacted by a lawyer, who took issue with the post. Hand says he changed the wording of the post, but also updated it to mention the lawyer’s complaint, and posted a scanned version of the letter that he received. A week later, Hand got a second letter demanding that he remove the post and any reference to the individual. A true blogger, he wrote about that too, and posted a scanned copy of the new letter.
After being hit with a temporary injunction (which he also posted a copy of), Hand removed the post and references to the individual. He is now facing a permanent injunction, as well as contempt of court, and could have to pay $25,000. So why didn’t he just give in and take down the post to begin with? And why did he feel compelled to post all of the scanned documents?
“It’s a freedom-of-speech thing,” Hand says, a principle that “is extremely important to me.” The long-time Montreal gallery owner — who describes himself as “loud, opinionated and aggressive” — also admits that “once you start dragging things into court, I do tend to dig my heels in.”
University of Ottawa law professor Michael Geist says Canadian bloggers need to be aware that by effectively becoming publishers, they are subject to the laws on defamation and libel. Those laws “apply online as well as off-line,” he says. “Just because bloggers have the ability to write whatever they want doesn’t give them licence to defame anyone.”
Ironically, some of those who sue bloggers for libel wind up compounding the problem by giving the blogs in question even more publicity. This is sometimes known as the “Streisand Effect,” after an incident in which the singer tried to have photos of her house removed from a website, but only succeeded in getting more people to view them.
“If he had just let it die, then people would’ve forgotten about it,” Hand says of his fellow gallery owner. “My blog only gets a couple of hundred readers.” Because of the attention the suit has created, however, his blog is now among the top links in Google for the individual’s name.
Geist says there are likely to be more lawsuits against bloggers as blogs become more mainstream. “It certainly feels like we’re seeing more of these cases, and it probably reflects the fact that there are more people blogging,” he says. “And at the same time, people are increasingly realizing that blogs have an impact and that more people are reading them.”
Geist says he is also concerned that suits are increasingly being filed not just because of what a blogger says in a post, but because of what is said in comments by visitors to blogs. While third parties are protected from such suits in the United States by the Communications Decency Act, Canada has no such protection, he says, and that raises “a significant threat of ‘libel chill.'”
In an ongoing case involving several Canadian bloggers, a man named Wayne Crookes has sent letters warning not just those who make negative comments about him, but anyone who even links to a blog that contains such comments. He has already sued the Wikipedia site, as well as Google. One Toronto blogger said he wrote about Crookes, but took down a comment posted on his blog about the incident and deliberately avoided writing about it again for fear of a lawsuit.
After Crookes sent letters to several bloggers, “I decided not to post on it, again because of a concern that I might be sued,” the blogger said, “and because the line between what was permissible and what was not was so unclear that I couldn’t take the chance.” The blogger said part of the hesitation about posting stemmed from “a concern that I might be held liable for what others said — either as comments on my post, or in material that I linked to, or that was linked to by material that I linked to [and so on].”
If lawsuits are the price of admission to the mainstream media business, some bloggers might start wishing for a little less recognition.