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Canadian Court Reverses Net Publication Ruling
An anonymous reader writes "A Canadian appellate court has reversed
an earlier ruling that had media companies worldwide fearing an
Internet publication chill. A lower court had asserted
jurisdiction over the Washington Post based solely on an article
published years earlier that was available on the Post's website. That decision attracted the attention of companies such as Reuters and Yahoo!, who appealed what was viewed as a dangerous Internet jurisdiction case."
rofl
I think?
Blazer sucks my fruity fat ass.
Ontario Court of Appeal Reverses Bangoura Net Jurisdiction Decision
The Ontario Court of Appeal released its much-anticipated Bangoura v. Washington Post decision yesterday, reversing the lower court' s ruling that asserted jurisdiction over the Post in a dispute over an article published in 1997. The appellate court' s reversal is welcome news since the case had the potential to create a chilling effect on Internet publication.
The lower court decision attracted considerable attention as it stood as perhaps the most aggressive (and wrong-headed) Internet jurisdiction analysis. I characterized the decision as establishing a "moving target" test for Internet jurisdiction, since there was no connection to Ontario when the article was first published (the connection with the province only arose years later when the Bangoura moved from Africa to Toronto).
The unanimous appellate court had little trouble reversing the decision, noting that "the connection between Ontario and Mr. Bangoura' s claim is minimal at best. In fact, there was no connection with Ontario until more than three years after the publication of the articles in question." Moreover, the court concluded that there was no evidence of significant harm in the province.
Given that analysis, the court rightly concluded that "it was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation."
The court also provided a couple of comments touching specifically on Internet jurisdiction caselaw. It considered the Gutnick decision and concluded that given the different facts, it wasn't helpful. Moreover, the court acknowledged the range of Internet jurisdiction tests (including the targeting test). It noted that it did not find it necessary to adopt any of the potential tests for this case, but that it might be useful to consider the analysis in a future case involving Internet publication.
Argh.
You have to wonder whether local laws can in any way be applied to the Internet.
What if I, in England, publish something that breaks a law in Germany where my webhost resides? Who gets prosecuted, if at all?
Argh.
But a valuable decision/correction non the less.
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
Let's hope the rest of the countries of this world are equally smart about this!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Not even if your webhost is there. I think just the fact that someone in Germany can access your article was the problem here.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
The judge in the lower court should be removed - permanently - from the bench. Any judge that dumb shouldn't be deciding any cases!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
maybe i should go to africa where tribes are.. then i set up computers and all there.. to see if US RIAA can sue me for sharing the musics over on internet Justresiction... mmm maybe it time for me to move to africa! whoo!
*I am kidding actually.. i dont sharing at all.. really! And i am not moving, no way jose.*
By the time you staff the place, hire housekeeping and then the judicial staff, the rulings apply to what, the remaining 2000 people of Canada? I think they all sell t-shirts at Niagra Falls anyway.
An Ontario based court rules against freedom of speech?
Who'd have thought that a part of Canada that forces their propaganda on the rest of the country (using a government owned brodcasting company) would be against freedom of speech?
On the same topic, what's the best country for hosting stuff that pisses off Western companies?
E.g. suppose I have a news site that deeplinks to the NYTimes. I suspect if I host in the USA or Canada, they can get at me and perhaps shut me down with summary judgement.
But what's a country where that would be cool, and they'd tell the USA and Canada to go jump in a lake?
I know France is bad -- Google got in trouble for their searches (e.g. Company Z, a competitor of "Company A" could buy the search term "Company A", and serve ads for "Company Z"). The French say that is against their trademark laws. Germany and other countries also have "hate speech" laws that get in the way of freedom of expression.
Thanks in advance!
http://www.thebricktestament.com/the_law/when_to_
world. GNAA member5 bureaucratic and
*joke*
Seriously, if you don't hold US citizenship and don't mind being banned from the good ol' USA, try anti-American countries like Cuba and countries that couldn't give a rats ass what Washington thinks, like China or sometimes France. Obviously not France for certain trademark-violating or pro-Nazi sites of course. On the other hand I hear Germany and a few other European countries are great places to post anti-Church-of-Scientology stuff that's (c) by them in the USA.
Actually, what you want is a country whose laws protect the very activity you want to engage in, like the CoS example above. Unfortunately, I'm not the right person to ask.
I'm pretty sure that if you are an American or have assets in the USA, if the companies track you down they will find a way to make your life miserable nonetheless, corporate veil or no corporate veil.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Now why doesnt the US government take a lesson from its northern neighbors and reverse a few rulings....
*achem* Patriot Act *cough*
A morning without coffee is like something without something else.
Other things Ontario does is the Ontario government keeps the copyrights to things it produces, it should be released into the public domain like the United States' Federal Government does (one of the few things they do I approve of).
IIRC, ThePirateBay, probably the biggest Bittorrent "dark grey" tracker network, is hosted in Sweeden, and, well, they openly mock US companies that send them threatening letters.
0 a.htm
http://thepiratebay.org/legal.php
Also, IIRC, Sealand, which is a floating fortress that was abandoned in international waters, apparently has a hosting company. They make it a point to host things that might be illegal in other countries (the exception being child pornogrpahy and spam).
http://thewhir.com/marketwatch/sealand.cfm
http://geography.about.com/library/weekly/aa08110
> perfectly legal in Russia, but got arrested when he visited the U.S.
> because it was claimed he broke the U.S. DMCA.
By offering ebook-cracking software for sale to Americans in America, he was breaking American law[1]. That someone who was breaking American law was arrested when he came to America is not entirely surprising.
Now, I'll grant you that it's not a good law, but at the time of his arrest, selling this kind of circumvention software was a crime in the US, and offering it for sale to Americans inside America---regardless of whether that selling was over the web or not---meant that he was breaking an American law.
Sklyarov's case isn't about over-reaching jurisdiction---he was arrested in the US for breaking a US law in the US---it's about bad laws . Muddying the waters by confusing the two just helps divert attention away from (possible or real) problems due to each of these (different) phenomena.
[1] It's questionable whether Dmitry was actually in violation of any US laws, since it is claimed that he had nothing to do with the distribution of the program inside the US. Nevertheless, that is what he was arrested for and charged with, so he was indeed arrested for and charged with committing a crime (distribution of circumvention software) against US law in the US (Washington State-based server, US clients). That he may well have been innocent of those charges does not make them "overreaching their jurisdiction" any more than any other innocent man in the US being charged with a crime involves overreaching jurisdiction.
This remains the case. For the purposes of defamation, the relevant jurisdiction is that where the material was published in the legal sense of the word, meaning 'where it was communicated to a person other than the plaintiff'. The location where a matter is read or heard is the location at which that matter will be considered to have been 'published'
Thus it was held by the High Court (Gutnick v Dow Jones) that an American company (Dow Jones) publishing defamatory imputations about an Australian citizen, hosted on servers in the US, could nonetheless have action brought against it in Australian courts because the material was viewable by subscribers in Australia.
From the perspective of the legal thought underpinning the tort it makes perfect sense, but it seems somewhat at odds with a lay-person understanding of jurisdiction and the nature of international communication networks.
What he said is true. It remains beyond me that courts have said "yes, the kidnapping of the defendant was illegal" and yet, because the defendant is in court, the court can proceed because physical presence gives them jurisdiction. At least, this is how it works in the US when foreigners are involved. US Citizens have protections.
Linky goodness.
CoS stuff is good in Germany because Germany banned the CoS as a "dangerous cult", so they don't get any legal protections there. But in general Germany's laws aren't that friendly, and there is basically no fair-use provision.
Barring any country with a specific advantage for your specific content, I'd say the U.S. is probably the best, despite its numerous drawbacks. The First Amendment provides a very strong presumption in favor of people publishing content. This means you don't have to worry about all sorts of weird stuff that could befall you elsewhere, like being sued for offending religious sensibilities (France, Italy, etc.). It's also much harder to get a libel judgment in the US than it is in places like the UK, and the fair-use provision is stronger than it is in other countries (despite the best efforts of the media lobby).
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
I have no idea if Canada follows the process we do, but here in the US, we have judicial recall votes.
Basically, in this hideously long section on each ballot, we can vote against whichever judges we feel like, and if they get enough recall votes, they get the boot.
Granted, 99% of the public seems to ignore this section or vote yes to all or to just vote randomly, but if you organize enough, and if Canada has a similar process, you can always work to recall the guy.
Even if you don't get a recall vote through, enough interest or campaigning over it might at least raise a few eyebrows and draw attention to this important issue.
I think it was even a lot more complicated than that. In this case, the Washington Post slandered a person. That it was slander was not in question, and slander is illegal in both Washington and Ontario. The problem is slander is a law of circumstances, in which reputation is harmed. The person in question was not harmed in Washington has he had no reputation there, not having any friends, family, or colleagues. Even by Washington law, the harm happened in Ontario. There were a bunch of other contributing factors as well such as availability of witnesses. In essense, neither Washington nor Ontario seemed the right venue, yet that would allow the Post to get away with it.
This is not so much a internet jurisdiction problem as it is a general problem with laws in which the act happens in one location but the harm happens in another. This isn't new, and there's plenty of case law from telephone, mail, and so forth. It is an interesting problem with no easy answers though. The internet just makes it all the more common and visible.
That's an excellent analysis that deserves an INSIGHTFUL mod that you probably won't get since this article is off the first page.
However I must also point out that when the article was written and published, he wasn't libeled (slander is spoken, libel is printed) harmed in Ontario either, since he had never lived there and did not move there for another 3 years.
One thing about electronic media is that it can be edited -- or even recalled completely -- afterwards, unlike print editions. While you say you can print the page when you view it, I feel a case can -- and should -- be made that electronic media is subject to editing and correction, and that when the editor makes a good faith effort to correct previous errors by adding additional, accurate commentary that this should mitigate claims for damages. All such corrections should be posted as part of the original story for this.
To me it is not as clear cut that the Post maliciously libeled this person simply because they could, knowing he could not sue from his location at the time. Any newspaper doing that very often has destroyed themselves in the process. (This is not intended to start a flamewar of the Post verses the Wa Times.) I do believe, however, that things need to be viewed in the context of when and where they happened. If you can't sue at the time of the incident, simply moving to another location should not necessarily allow you to have the unrestricted ability to sue afterwards, because at the time the article was first printed it was not a crime.
As you say, solutions are hard for this type of problem given the lack of uniform laws across the world. (And I am not advocating for any form of World Government here to redress this.) My belief is that if he is allowed to move afterwards to a new jurisdiction that changes the circumstances, then the newspaper should equally be allowed to change or remove the story to address those circumstances. Only if the newspaper continues to push the original story should a court be involved in determining if it is slander, or not.
And I don't believe that a Canadian court should be allowed to determine what is published in an American newspaper.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
> in Russia. Not for making said software advailble to Americans because he
> was not the distributor of the software.
You clearly did not so much as glance at the links I provided:
"Dmitry Sklyarov and ElcomSoft face five criminal charges in the indictment: four counts of circumvention offenses, and aiding and abetting circumvention offenses, under section 1201 of the DMCA, and one charge of conspiracy.
The first count is a charge of conspiracy to traffic in technology primarily designed to circumvent, and marketed for use in circumventing technology that protects a right of a copyright owner (under section 1201(b)(1)(C) of the US Copyright Act, 17 USC, which was made law by the 1998 Digital Millennium Copyright Act (the DMCA), and 18 USC 371). The second and third counts allege trafficking in technology primarily designed to circumvent technology that protects a right of a copyright owner (under 17 USC 1201(b)(1)(A)) and aiding and abetting (under 18 USC 2). The fourth and fifth counts allege trafficking in technology marketed for use in circumventing technology that protects a right of a copyright holder (under 17 USC 1201(b)(1)(C)) and aiding and abetting (under 18 USC 2). Basically, they were charged with distributing software that can read encrypted Adobe ebooks in a manner not intended by the publishers. Under the charges, Dmitry faced up to 25 years in prison and a fine of up to $2,250,000, and ElcomSoft, as a corporation, faces a penalty of $2,500,000."
Please, don't "correct" people unless you know what you're talking about.