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Kazaa's P2P libel suit threatens to mute Canadians

Silence is golden

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Now, most Netizens (the people to whom the statements were actually published) know that anonymous web postings basically amount to rants and raves and should not be taken seriously for any purpose whatsoever. The "reasonable person" who factors so heavily into Canadian libel law does not seem to have grasped this concept, however. For this person, it is reasonable to assume that a statement on an Internet message board carries just as much weight as a statement made in a newspaper or magazine. And a statement that accuses someone of criminal conduct will count as defamation so long as that person or corporation can show that the statement damaged their reputation.

Canadian courts jump at the opportunity to find that reputations have been damaged. Once that happens (and it will happen!), Newton and the poster can get off the hook by proving that the statements were actually true. This places a serious onus on the defendants, however, and will add up to serious time and money spent on litigation. If Newton and the poster can't go the distance and prove to the court that Sharman and Hemming actually hid money from the government of Oz, they will have to fork over cash for suggesting that Hemming and the company are crooks.

Given the likelihood that Sharman and Hemming probably don't want a trial going into the details of whether or not the statements were true, and the fact that the defamation charges against the other statements mentioned in the complaint are rather thin, the main purpose behind the action might actually be to discover the identity of the posters - after all, one of the posters accused Hemming of lying about her age, which she may have taken a little personally. That would essentially make this case a Strategic Lawsuit Against Public Participation (SLAPP).

SLAPPs involve a corporation suing over speech critical of the company. The charges (usually defamation) don't have much weight behind them, and the real purpose of the suit is generally to intimidate an ISP into removing the content, or to find out the identity of a poster so the corporation can terminate an employee, end a business relationship, etc. British Columbia, like many other jurisdictions, doesn't have an anti-SLAPP law on the books, so corporations can continue to use these suits to stifle free participation in ongoing public discourse with no deterrent other than the minimal threat that the weaker defendant will sue them for abuse of the judicial process. 

In this case, the strategy – if that is the strategy – has been working well so far. P2PNet has removed the articles and postings, and the identities of the posters will probably come out in pre-trial discovery - assuming that the postings can be effectively traced. That means that Canadians who have something to say about prominent corporations and their executives may want to think twice before posting it on their favorite website.

Canadians will want to keep their eyes open and mouths shut as this case proceeds. ®

Kevin Fayle is an attorney, web editor and writer in San Francisco and a graduate of the University of California, Hastings College of the Law. When he's not pointlessly running in circles around Golden Gate Park, he scrutinizes and analyzes U.S. Federal case law for the frequent signs of the Second Coming. He keeps a close eye on IP and International Law issues.

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