Wayne Crookes’ lawsuits disconcerting and perhaps even frivolous, but are they a necessary exercise in the establishment of Internet accountability?

When I read about the lawsuits that were brought against several bloggers by Wayne Crookes for simply providing a link to major Internet sites such as Google, Yahoo, Wikipedia and MySpace, sites that Mr. Crookes contends defamed his character, I must admit that I immediately thought of the Jerky Boyz’ Sol Rosenberg.  As part of a prank call, the intrepid (and fictitious) Mr. Rosenberg contacted a lawyer claiming that his feelings were hurt by something his boss had said.

According to today’s techdirt blog post “Blogger Sued, In Part, For Linking To Material Claimed To Be Defamatory” the suits, on which the lower courts eventually ruled that merely linking to potentially defamatory material is not defamation, a decision which was upheld by the appeals court, and is now before the Canadian Supreme Court, is disconcerting.

Beyond the question regarding the liability of sharing a link to a site in which the information posted is possibly defamatory, the real issue according to techdirt’s Mike Masnick is that actions such as these “certainly feel like efforts to stifle freedom of expression.”  The fact that OpenPolitics.com reports that “Since 2004, Crookes has become publicly known for use of libel suits against individuals who have commented on his role in the Green Party, and the forums, websites, and technology companies that hosted the comments,” would seem to support Masnick’s position.

That said and even though I am of the opinion based on what Masnick has written that the Crookes case is perhaps frivolous on some level, it would also seem to be a necessary exercise in establishing Internet accountability.

As you know, over the past few months I have written extensively about cases in the US where individuals such as Dr. Laura Schlessinger and William Melchert-Dinkel (the Serial Suicide Killer), have sought to justify bad behavior over the airwaves as well as over the Internet by claiming that calling them to accountability is somehow a violation of their First Amendment Rights to free speech.

Particularly odoriferous is the Melchert-Dinkel claim to free speech relating to his role in the deaths of up to five people.    Melchert-Dinkel, who preyed upon the emotional vulnerabilities of his victims by coercing them into taking their own lives and requesting to watch them do so via their Internet webcam, is an example of how widely the pendulum swings in terms of what does or does not constitute free speech.

In this regard, I wholeheartedly support the position that was presented by Susan Brenner in a May 6th, 2009 article which suggests that “The basis for the assimilation or perhaps reconciliation of virtual and physical realities in terms of law enforcement starts with the basic premise of criminal law.”  According to Brenner, who is the NCR Distinguished Professor of Law and Technology at the School of Law, the focus or emphasis should not be placed on the differences between the physical and virtual worlds, but instead should be based on “preventing the infliction of harm.” Within this framework, Brenner stressed that “we should not simply assume criminal conduct vectored through cyberspace represents an entirely new phenomenon, i.e. cybercrime,” as it may represent “nothing more than the perpetrators’ using cyberspace to engage in conduct that has long been outlawed.”

Reflecting the same sentiments expressed by Brenner, and in response to the Melchert-Dinkel case, MP Harold Albrecht was the driving force behind the passing of Motion 388, which seeks to extend the existing law against assisted suicides to the virtual realms.  In short, if assisted suicide is illegal in the physical world, then it should also be illegal on or over the Internet.

Therefore, the question that needs to be answered relative to the Crookes action is simply this, is the provision of a URL link over the Internet different from providing a similar reference in for example a newspaper or magazine?  If it isn’t, would Crookes’ claim carry weight in the physical world of traditional media?

A July 7th, 2010 post on the i-policy.com website may serve to shed some light on this issue through their reference to an April 2008 decision in the French courts that “Website owners committed defamation and invasion of privacy by providing hyperlinks to materials that invaded the privacy of Olivier Martinez, Kylie Minogue’s ex-boyfriend.”

According to the i-policy.com article, The French court’s decision held that “by sending the reader to the Website celebrite-stars.blogspot.com, the defendant had effectively made an editorial decision.”   The defendant in the case, was ordered to pay $1,000 Euros in damages and $1,500 in legal costs for said “invasion of privacy.”

This would lead one to conclude that regardless of whether said information was printed in a paper or posted on an Internet site, the key consideration upon which the French court’s decision appears to be based was tied to what amounted to an editorial decision.  Such decisions, it would also be reasonable to conclude, are not the sole domain of either the physical or virtual realms of media.

For this reason, citizen journalists need to check and re-check their facts from multiple sources before rendering an informed opinion versus simply providing a URL link to another site.  By going through this important filtering process, they can honestly and accurately write about a given topic, confident in the knowledge that they can “stand by their stories and their sources.”

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