[imc-canada] {long} Re: [imc-ontario] Need legal advice about IMC Ontario website
John Milton
john.milton at hwcn.org
Fri, 1 Feb 2002 00:46:37 -0500
----- Original Message -----
From: <kevsmith@canada.com>
To: <imc-process@indymedia.org>; <imc-canada@indymedia.org>;
<imc-ontario@indymedia.org>
Sent: Thursday, January 31, 2002 10:27 PM
Subject: [imc-ontario] Need legal advice about IMC Ontario website
> Hi folks:
>
> (For imc-process, please respond personally, as I'm not currently on the
list. I will return someday...)
>
> I'm sure everyone will have personal opinions on this, but please -- I
need informed legal opinions, so pass this on to your lawyer friends.
>
> First of all, let me note that IMC Ontario is in Canada, although the
server we are hosted on is in Seattle, so I'm not clear whether Canadian or
US law applies.
>
> A posting was received on IMC Ontario by an anonymous poster which
identified an individual as a "student beater", and gave a somewhat
exaggerated account of his crimes (which just occurred recently, so he has
not been tried in a court). The post goes on to give his home address, and
phone/fax/e-mail for work and home. It goes on to list his wife's name, and
the names and ages of his children. At the end it says "give him your
input".
>
> After this, I received an e-mail at ontario@indymedia.org from this "Sugar
Larry" guy who said that this posting constituted libel and a threat, and
that if I didn't remove this posting immediately, he was going to contact
the person described in the post, and recommend he contact the police.
Being totally stressed out about other stuff this week, I complied, not
wanting visits from the police when I was totally unclear on who would be
charged with what for this post (if anyone). So, I hid the article, but
that wasn't good enough for this guy. He wanted it right off the site. So,
after quickly consulting with some other local activists who were around, I
took it off.
>
> That's where things stand now. The article has been "temporarily removed,
pending a decision by the IMC Ontario editorial collective". Lots of e-mail
flurrying about, but still no idea what the legalities are for our
situation.
>
> So, I would like to find out the following, both to deal with this post,
and to deal with unforeseen circumstances in the future:
>
> 1) Does US or Canadian law apply here?
>
> 2) Would such a posting be considered criminal? If so, who would be held
responsible for it, and what would the consequences be?
>
> 3) If we have an open publishing newswire, and a post goes up which would
be considered criminal, and the editorial collective are held responsible,
how long do we have to rectify the situation before we are held legally
liable for the posting?
>
> 4) If an article is "hidden" (off the newswire and not searchable, but
still viewable on the site), is it still considered to be published, for
legal purposes?
>
> 5) If we take an article off the site, and then put it back up later
(after an editorial decision), are we held more liable than if we just left
the article up there in the first place?
>
> I'm sure the legal issues on some of these aren't clear-cut. But, if
we're developing policy, it would be good to have some idea of the
consequences of our decisions.
>
> Thanks,
> Kevin.
>
>
> __________________________________________________________
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I am not a lawyer, but have had reason to look into some of this stuff in a
more than casual way... [long story] The law does lag behind technology
somewhat, but it is my understanding that what case law there has been on
this tends to support the spirit of the older laws. The long and the short
of it is this: A published statement to the effect that "John Smith"
commited a criminal act, when in fact he has not yet been convicted of that
offence is probably libel. If he is found not guilty it is allmost certainly
libel (Hence the use of "alleged" in news stories) A "publisher" is
responsible for libel they publish unless they fall under one of the
defenses listed below. (the only one that might apply here that I see is
ignoranceof the exsistance of the material, but if it can be shown that the
publisher has been made aware of the material thats out the window...)
There are 2 ways someone can proceed in a matter of libel, criminal or civil
(i.e. cops or sue)((or both)).
When folks sue they tend to sue "everybody". There is no way to garantee you
will never be sued. "Consequences" can include damages, which can run from
10's to perhaps 100's of Kilo$, plus his legal fees, and yours (maybe
couple of hundred hours at a couple of hundred $ per.)
In short: How much of your money? All of it!
As far as criminal action, if they can find a willing crown and get a
conviction its up to 2 years, or up to five if they can show that the
publisher knew the statement was false when they published it. I understand
that criminal libel actions are rare.
So, question is who is /are the "publishers" :}
John Milton
john.milton@hwcn.org
Relevant sections of Canadian criminal code:
Defamatory Libel
Section 297
In sections 303, 304 and 308, "newspaper" means any paper, magazine or
periodical containing public news, intelligence or reports of events, or any
remarks or observations thereon, printed for sale and published periodically
or in parts or numbers, at intervals not exceeding thirty-one days between
the publication of any two such papers, parts or numbers, and any paper,
magazine or periodical printed in order to be dispersed and made public,
weekly or more often, or at intervals not exceeding thirty-one days, that
contains advertisements, exclusively or principally.
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Section 298
(1) A "defamatory libel" is matter published, without lawful justification
or excuse, that is likely to injure the reputation of any person by exposing
him to hatred, contempt or ridicule, or that is designed to insult the
person of or concerning whom it is published.
(2) A defamatory libel may be expressed directly or by insiduation or irony
(a) in words legibly marked upon any substance, or
(b) by any object signifying a defamatory libel otherwise than by words.
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----
Section 299
A person publishes a libel when he
(a) exhibits it in public
(b) causes it to be read or seen, or
(c) show or delivers it, or causes it to be shown or delivered, with intent
that it should be read or seen by the person whom it defames or by any other
person.
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----
Section 300
Every one who publishes a defamatory libel that he knows is false is guilty
of an indictable offence and liable to imprisonment for a term not exceeding
five years.
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----
Section 301
Every one who publishes a defamatory libel is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
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----
Section 303
(1) The proprietor of a newspaper shall be deemed to publish defamatory
matter that is inserted and published therein, unless he proves that the
defamatory matter was inserted in the newspaper without his knowledge and
without negligence on his part.
(2) Where the proprietor of a newspaper gives to a person general authority
to manage or conduct the newspaper as editor or otherwise, the insertion by
that person of defamatory matter in the newspaper shall, for the purposes of
subsection (1), be deemed not to be negligence on the part of the proprietor
unless it is proved that
(a) he intended the general authority to include authority to insert
defamatory matter in the newspaper; or
(b) he continued to confer general authority after he knew that it had been
exercised by the insertion of defamatory matter in the newspaper.
(3) No person shall be deemed to publish a defamatory libel by reason only
that he sells a number or part of a newspaper that contains a defamatory
libel, unless he knows that the number or part contains defamatory matter or
that defamatory matter is habitually contained in the newspaper.
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----
Section 304
(1) No person shall be deemed to publish a defamatory libel by reason only
that he sells a book, magazine, pamphlet or other thing, other than a
newspaper that contains defamatory matter if, at the time of the sale, he
does not know that it contains the defamatory matter.
(2) Where a servant, in the course of his employment, sells a book,
magazine, pamphlet or other thing, other than a newspaper, the employer
shall be deemed not to publish any defamatory matter contained therein
unless it is proved that the employer authrized the sale knowing that
(a) defamatory matter was contained therein; or
(b) defamatory matter was habitually contained therein, in the case of a
periodical.
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----
Section 305
No person shall be deemed to publish a defamatory libel by reason only that
he publishes defamatory matter
(a) in a proceeding held before or under the authority of a court exercising
judicial authority; or
(b) in an inquiry made under the authority of an Act or by order of Her
Majesty, or under the authority of a public department or a department of
the government of a province.
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----
Section 306
No person shall be deemed to publish a defamatory libel by reason only that
he
(a) publishes to the Senate or House of Cmmons or to a legislature of a
province defamatory matter contained in a petition to the Senate or House of
Commons or to the legislature of a province, as the case may be;
(b) publishes by order or under the authority of the Senate or House of
Commons or of the legislature of a province a paper containing defamatory
matter; or
(c) publishes, in good faith and without ill-will to the person defamed, an
extract from or abstract of a petition or paper mentioned in paragraph (a)
or (b).
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----
Section 307
(1) No person shall be deemed to publish a defamatory libel by reason only
that he publishes in good faith,m for the information of the public, a fair
report of the proceedings of the Senate or House of Commons or the
legislature of a province, or a committee thereof, or of the public
proceedings before a court exercising judicial authority, or publishes, in
good faith, any fair comment on any such proceedings.
(2) This section does not apply o a person who publishes a report of
evidence taken or offered in any proceeding before the Senate or House of
Commons or any committee thereof, on a petition or bill relating to any
matter or marriage or divorce, if the report is publishedd wihtout authority
from or leave of the House in which the proceeding is held or is contrary to
any rule, order or practice of that House.
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----
Section 308
No person shall be deemed to publish a defamatory libel by reason only that
he publishes in good faith, in a newspaper, a fair report of the proceedings
of any public meeting if
(a) the meeting is lawfully convened for a lawful purpose and is open to the
public;
(b) the report is fair and accurate;
(c) the publication of the matter complained of is for the public benefit;
and
(d) he does not refuse to publish in a conspicuous place in the newspaper a
reasonable explanation or contradiction by the person defamed in respect of
the defamatory matter.
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----
Section 309
No person shall be deemed to publish a defamatory libel by reason only that
he publishes defamatory matter that, on reasonable grounds, he believes is
true, and that is relevant to any subject of public interest, the public
discussion of which is for the public benefit.
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----
Section 310
No person shall be deemed to publish a defamatory libel by reason only that
he publishes fair comments
(a) upon the public conduct of a person who takes part in public affairs; or
(b) upon a published book or other literary production, or on any
composition or work of art or performance publicly exhibited, or on any
other communication made to the public on any sunject, if the comments are
confined to criticism thereof.
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----
Section 311
No person shall be deemed to publish a defamatory libel where he proves that
the publication of the defamatory matter in the manner in which it was
published was for the public benefit at the time when it was published and
that the matter itself was true.
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----
Section 312
No person shall be deemed to publish a defamatory libel by reason only that
he publishes defamatory matter
(a) on the invitation or challenge of the person in respect of whom it is
published, or
(b) that it is necessary to publish in order to refute defamatory matter
published in respect of him by another person,
if he believes that the defamatory matter is true and it is relevant to the
invitation challenge or necessary refutation, as the case may be, and does
not in any respect exceed what is reasonably sufficient in the
circumstances.
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----
Section 313
No person shall be deemed to publish a defamatory libel by reason only that
he publishes, in answer to inquiries made to him, defamatory matter relating
to a subject-matter in respect of which the person by whom or on whose
behalf the inquiries are made has an interest in knowing the truth or who,
on reasonable grounds, the person who publishes the defamatory matter
believes has such an interest, if
(a) the matter is published, in good faith, for the purpose of giving
information in answer to the inquiries; and
(b) the person who publishes the defamatory matter believes that it is true;
(c) the defamatory matter is relevant to the inquiries; and
(d) the defamatory matter does not in any respect exceed what is reasonably
sufficient in the circumstances.
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----
Section 314
No person shall be deemed to publish a defamaotry libel by reason only that
he publishes to another person defamatory matter for the purpose of giving
information to that person with respect to a subject-matter in which the
person to whom the information is given has, or is believed on reasonable
grounds by the person who gives it to have, an interest in knowing the truth
with respect to that subject-matter if
(a) the conduct of the person who gives the information is reasonable in the
circumstances;
(b) the defamatory matter is relevant to the subject-matter; and
(c) the defamatory matter is true, or if it is not true, is made without
ill-will toward the person who is defamed and is made in the belief, on
reasonable grounds, that it is true.
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----
Section 315
No person shall be deemed to publish a defamatory libel by reason only that
he publishes defamatory matter in good faith for the purpose of seeking
remedy or redress for a private or public wrong or grievance from a person
who has, or who on reasonable grounds he believes has, the right or is under
an obligation to remedy or redress the wrong or grievance, if
(a) he believes that the defamatory matter is true;
(b) the defamatory matter is relevant to the remedy or redress that is
sought; and
(c) the defamatory matter does not in any respect exceed what is reasonably
sufficient in the circumstances.
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Section 316
(1) An accused who is alleged to have published a defamaotry libel may, at
any stage of the proceedings, adduce evidence to prove that the matter that
is alleged to be defamatory was contained in a paper published by order or
under the authority of the Senate or House of Commons or the legislature of
a province.
(2) Where at any stage in proceedings referred to in subsection (1) the
court, judge, justice or provincial court judge is satisfied that the matter
alleged to be defamaotry was contained in a paper published by order or
under the authority of the Senate or House of Commons or the legislature of
a province, he shall direct a verdict of not guilty to be entered and shall
discharge the accused.
(3) For the purposes of this section, a certificate under the hand of the
Speaker or clerk of the Senate or house of Commons or the legislature of a
province to the effect that the matter that is alleged to be defamatory was
contained in a paper published by order or under the authority of the
Senate, House of Commons or the legislature of a province, as the case may
be, is conclusive evidence thereof.
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Section 317
Where, on the trial of an indictment for publishing a defamatory libel, a
plea of not guilty is pleaded, the jury that is sworn to try the issue may
give a general verdict of guilty or not guilty on the whole matter put in
issue on the indictment, and shall not be required or directed by the judge
to find the defendant guilty merely on proof of publication by the defendant
of the alleged defamaotry libel, and of the sense ascribed thereto in the
indictment, but the judge may, in his discretion, give a direction or
opinion to the jury on the matter in issue as in other criminal proceedings,
and the jury may, on the issue, find a special verdict.