Aurora Citizen

Michael Geist is the Internet Law Columnist for the Toronto Star, and we have referred to his writings here before.

His qualifications to comment are impressive. He is a law professor at the University of Ottawa where he holds the Canada Research Chair of Internet and E-commerce Law. He has a Bachelor of Laws degree from Osgoode Hall Law School in Toronto, Master of Laws degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law from Columbia.

He recently commented on the Supreme Court decision around the case on internet linking http://www.thestar.com/business/article/1074612–supreme-court-stands-up-for-the-internet

The are many differences between the Alberta case that went to the Supreme Court and the recent lawsuit here in Aurora, but his final comment was very insightful

Given the connection between freedom of expression and the Internet, the Supreme Court has signaled that it will look with great skepticism at laws that could have a chilling effect on the ability for Canadians to fully participate online.

The decision on the Norwich motion — which by abandoning her appeal signals that Morris has accepted the wisdom of the courts — is equally important in defending Canadians’ ability to participate fully online.

Going forward, when similar lawsuits come before the courts, Phyllis Morris will be referenced as the leading case in this area. She made legal history.

When posting online, a witch hunt is not allowed. As a first step, a real case of defamation must be established before the courts will even consider a request for names to be released. Where the online posts concern political commentary, the court will be even more diligent in ensuring that the plaintiff makes out a real case of defamation.

In the Aurora case, no proof of defamation was made out. It is not simply enough to allege defamation as Morris did — the words themselves must be clear, and capable of a defamatory meaning. The Court held that she never did this — and Ms. Morris has now accepted their ruling.

This lack of proof that there was ever something defamatory said about her, even under a generous reading, was the significant factor on her motion being dismissed.

In fact, even where Ms. Morris could have submitted an affidavit to further explain why she thought the statements she viewed as hurting her reputation were defamatory, she did not do so.

Furthermore, while at least three motions were before the court at various points in the lawsuit, at no time did Phyllis Morris herself actually place any evidence before the court. Not once.

By not submitting an affidavit herself, Mrs. Morris neatly avoided having to answer any questions herself.

Instead, she argued her case in the press, mentioning claims about physical threats.

When push came to shove, Ms. Morris preferred to try her case outside of the Courts.

Now, she has no case to be tried. None whatsoever.

A recent Supreme Court ruling also has some applicability to what has happened here in Aurora.

This case deals with a blog publisher who published hyperlinks to other internet content.

The plaintiff argued that by creating the hyperlinks they became a “publisher” of defamatory material.

The defendant argued a link is not an endorsement.

The lower courts agreed with the defendant — as did the Supreme Court.

This ruling crystallizes the position that publishers of blogs are not responsible for the content written by others when posting hyperlinks on their blog.

While publishing hyperlinks to other content is not exactly the same as allowing comments to be published — it certainly supports the position that publishers  are not responsible for the comments of others.

The Toronto Star reports on the decision here.

http://www.thestar.com/news/canada/article/1072362–supreme-court-ruling-big-victory-for-internet-freedom?bn=1