A SMALL computer file appeared on the Internet last week, purporting to list the 13,000 members of the racist, far-right British National Party. The text file contained not just the names of the party’s supporters, but their home addresses, home phone numbers and, in some cases, hobbies (including a fair sampling of model airplane and train collectors) and professions (including a few lawyers, doctors and teachers).

And all the queen’s horses and all the queen’s men haven’t managed to make that list disappear.

Make no mistake, the Web sites of the large newspapers, frequent victims of strict libel laws in Britain, have done their part. Reporting on what cannot be reported is something in which the British have much more experience.

“In the U.S., the starting point is that you have the right of freedom of expression,” said James Edelman, a law professor at Oxford. “There are ways it can be curtailed, but that is the starting point. It is almost the opposite in the U.K.”

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Raising the stakes, on Friday there was a suspected firebomb attack on a car parked outside the home of one of the people named on the list (but unnamed in the papers), though the police stressed that the connection to the party was only one line of investigation.

But so far, the only people mentioned by name in news accounts are the few controversial discoveries from the rolls — a sports-talk D.J. and a police officer; both are in danger of losing their jobs over their affiliation.

Instead, the papers have to play coy. At the Web site of The Guardian, for example, there is an interactive map showing the distribution of the membership across Britain, itemized locality by locality, but, not, say, block by block, under a note: “A court injunction prevents the distribution of the names on the B.N.P. membership leaked online.”

Jon Henley, in his first-person account on The Guardian Web site, reports: “Colleagues have pored in amazement over the records for their home towns.” And he adds that, “A university friend said she had discovered to her not-altogether-immense surprise that her parents’ next-door neighbors in Windsor were members. ‘Crusty,’ she said. ‘And very cheap sherry at Christmas.’ ”

This stance seems almost quaint in a world where the database is widely and easily available online, as the newspapers have pointed out. A host for the list is Wikileaks, a site that has become a home for orphaned material, including the e-mail messages of the former vice-presidential candidate Sarah Palin that were stolen by a hacker who obtained the password to her Yahoo account. (Both Ms. Palin and the British National Party confirmed that the material was genuine, though the party points out that its list, stolen by a disgruntled ex-member, is more than a year old and documents interaction with the party, not necessarily membership.)

Last week, when the interest in the British National Party membership list was most frenetic, Wikileaks’s servers were overrun and inaccessible, despite 10 or so mirror sites worldwide replicating the material to lessen the traffic burden.

Wikileaks encouraged visitors to become supporters ($25 minimum for an individual and $1,280 for an organization) with the added benefit of being able “to access our subscriber priority servers for 12 months.” (After much debate, the online encyclopedia Wikipedia, which is unrelated to Wikileaks, has not linked to the material.)

The party list was easily obtained at another site that revels in publishing secrets online, cryptome.org. The man who operates cryptome.org, John Young, wrote that as of Thursday, he had 2,000 to 3,000 downloads of the party list file. Asked if he had any limits on what personal material he would publish, Mr. Young wrote that his site focused on addresses, e-mail addresses and phone numbers “of public, mostly government, figures, and spies especially” — but usually not Social Security numbers.

Mr. Young argued that organizations like the British National Party often leak such material to get sympathy and show that their membership is full of regular people.

“I would guess the B.N.P. leak at 80 percent orchestrated,” he wrote. “The Brits are experts at this, perhaps the best.”

And true to that theory, the leader of the party, Nick Griffin, was quoted as saying that one good thing from the list’s being leaked was that it proved that the stereotype of his supporter as “a skinhead oik” was not true.

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The list included some 45 names of people living in America, some described as British, some not. One of those Americans, in a telephone interview, said that he had learned about the spread of the party list through an e-mail message from Wikileaks. He said he knew the list had been stolen and was resigned to the situation on the Web: “Once the cow is out of the barn, you can’t shut the door.”

“It’s like identity theft in that I feel violated. My name and address and phone number are probably already on the Internet. But having my name associated with what could be considered a controversial organization is a different story. There is no other reason you would be calling me at this time.”

But he stressed that the list was misleading. He was not a member, he said, but a one-time contributor two years ago. “I had donated money to them because they were fighting a legal battle,” he said, noting that he only spent three hours in Britain in his life, when he was switching flights in July. “Two years ago some of their members were arrested on a freedom of speech issue. They don’t have the United States kind of freedom of speech. I don’t think it is right for someone to go to prison for expressing their political views.”

“I think I will feel better as time goes on,” he said. “I am not losing sleep over it. I am just one of 12,000 people.”

by Jeffrey D. Neuburger, November 13, 2008

Linking to content is the essence of the online experience — it’s the “Web” in the World Wide Web. But there’s a lot of legal gray area around linking, and surprisingly few court rulings providing guidance as to the circumstances when linking could result in liability.

A court in Canada has now weighed in on the question of liability under Canadian law for linking to an article that contains statements alleged to be defamatory. On the facts of the case, the court ruled that linking to an article containing defamatory statements does not, by itself, constitute defamation. As in the case mentioned in my last post, the litigation arose out of an election-related controversy.

Crookes Versus the World

The individual plaintiff in Crookes v. Wikimedia Foundation, Inc. (B.C. Sup. Ct. Aug. 29, 2008) is Wayne Crookes, a Vancouver businessman who was involved with the Green Party of Canada in 2004. Crookes’s involvement in and supposed “takeover” of the party was the subject of three articles on the Canadian-based Open Politics website and another on the (apparently now defunct) usgovernetics website. Claiming that the articles were defamatory, Crookes filed a lawsuit against Michael Pilling, the Canadian editor of the Open Politics site.

Michael Geist

Some time later, Jon Newton, founder of digital news website p2pnet.com, wrote about the litigation on his website, including hyperlinks to the allegedly defamatory articles on the Open Politics and “usgovernetics” websites. Crookes responded by suing Newton as well. As will be discussed further below, Crookes also sued not only the Wikimedia Foundation but also Yahoo, Google and Domains by Proxy Inc., a domain name registrar, and numerous other parties for various actions (hosting, providing search results, etc.) relating to alleged defamatory articles and postings about Crookes.

Another Crookes target was widely respected Internet law authority Prof. Michael Geist. Crookes sued Prof. Geist for including a link to Newton’s p2pnet site on his own website.

No Publication, No Liability

Crookes’s underlying lawsuit against Pilling is awaiting trial, as are the cases against most of the other defendants mentioned above. However, in the case against Newton for linking to Pilling’s articles, the court conducted a “summary trial” (a proceeding without a jury,) and ruled in favor of Newton, finding that creating a hyperlink to a defamatory statement does not, by itself, constitute a “publication” of the defamation.

“Publication,” the communication of a defamatory statement to a third party, is a necessary element that must be shown to maintain a claim of defamation under Canadian law. (This is also the case under U.S. law.) In considering whether Newton’s links to the articles constituted a “publication,” the court drew an analogy to a footnote in a print publication, stating: “Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed.” The fact that a reader can access the source more easily via a hyperlink than via a footnote in a print publication makes no difference, the court concluded:

Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided.

The court also considered the entire context of Newton’s links, noting that Newton had not published any defamatory content about Crookes on his p2pnet site nor did he reproduce any of the content from the articles Crookes claimed to be defamatory. Newton also made no comment on the nature of the articles to which he was linking. Consequently, merely providing links to defamatory content, the court concluded, did not make Newton liable for any defamation in the articles to which he linked.

Be Careful How You Link

Note well that the court did not say that there can never be any liability for linking to defamatory content:

I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written ‘the truth about Wayne Crookes is found here’ and ‘here‘ is hyperlinked to the specific defamatory words, this might lead to a different conclusion.

So the ruling is fact-specific. Had Newton endorsed the statements in the linked articles, or added his own “color commentary” to them, the result might have been different.

By the way, the issue of whether the original statements in the articles to which Newton linked were, in fact, defamatory has not yet been decided; the trial in Crookes’s lawsuit against Pillings of Open Politics, originally scheduled for October, has been adjourned.

What Result Under U.S. Law?

If Crooke’s lawsuit had been brought in the U.S. under U.S. law, it might have been resolved in Newton’s favor under the provisions of the Communications Decency Act of 1996. Section 230 of the Act says that providers and users of an “interactive service” cannot be held liable “as a publisher or speaker” for “information provided by another information content provider.” Although there does not appear to be any opinion in the U.S. presenting precisely the same facts as those in Crookes v. Wikimedia Foundation, Section 230 of the Communications Decency Act has been interpreted very broadly to protect both providers and users of interactive services from liability for defamation and other torts for “information” provided by third parties.

Canadian Court Used as Guidance in U.S.

One reason to care about the ruling of a Canadian court is that a U.S. court might look to a Canadian ruling for guidance on an issue where there is no binding rule under U.S. law. Canada is our close neighbor both geographically and legally — both legal systems have their origins in the English common law system — and it is not unusual to find courts in each system citing one another’s rulings in subjects, such as libel and slander, where there is a common legal heritage.

Wayne Crookes

An example of that can be found in the Crookes v. Wikimedia Foundation ruling itself, where the court quotes extensively from another Canadian court ruling that, in turn, references several rulings of U.S. courts on an issue of defamation liability. So, if a court ruled that a similar lawsuit was not governed by Section 230 of the Communications Decency Act, it might look to the reasoning in Crookes v. Wikimedia Foundation to decide on the issue of linking as publication.

In fact, the result in Crookes v. Wikimedia Foundation is generally consistent with the result a U.S. court might reach applying Section 230: An online service provider or user is liable for its own statements, but not for the statements of others.

Getting Sued in Canada

Another reason to care about a ruling by a Canadian court is that a U.S. website operator or other service provider might well get sued in Canada by a Canadian plaintiff for allegedly defamatory statements made online, and either be forced to respond in a Canadian court or risk an adverse judgment. In fact, that’s what happened here. Not only has Crookes sued the Wikimedia Foundation, it has also sued Google and Yahoo and other service providers on the grounds that they are responsible for various defamatory statements and articles about Crookes.

Canada does not have a law equivalent to Section 230 that provides a safe harbor from liability for these entities. In that respect, the results in the Crookes litigations against service providers may be critical to the development of Internet liability law in Canada.

Does a Canadian court have the power to hear a defamation lawsuit brought against the operator of a U.S.-based web service provider? In other words, does the Canadian court have jurisdiction in such a case? In Crookes v. Yahoo Inc., a Canadian appeals court upheld the dismissal of Crookes’s claims against Yahoo for lack of jurisdiction, finding that Yahoo has no physical presence in Canada and that Crookes failed to show that allegedly defamatory statements about him posted on the GPC-Members newsgroup hosted by Yahoo had been read by anyone in Canada.

But other rulings by Canadian courts, such as the 2005 ruling in Bangoura v. Washington Post involving a defamation lawsuit brought in Canada against the Washington Post, suggest that a Canadian court would be willing to exercise jurisdiction over a U.S. website operator or other service provider under the right circumstances. That has happened in Australia, in Dow Jones v. Gutnick, where the Australian High Court upheld the exercise of jurisdiction over the Dow Jones Corp. for an online article that allegedly defamed an Australian businessman. (It is unclear whether the other U.S.-based defendants sued by Crookes have, like Yahoo, moved to dismiss on jurisdictional grounds, although Google has an office in Canada which might preclude it from making a motion similar to Yahoo’s.)

One Final Note

Let us suppose that Crookes succeeded in obtaining a judgment against a U.S.-based service provider and sought to enforce that judgment in the U.S. Would a judgment rendered by a court in Canada be enforced by a U.S. court? A U.S. court might reject such a judgment on the basis that the First Amendment affords the speech of U.S. citizens greater protection than does the law of many other nations. To the extent that a judgment issued by a foreign court might violate the First Amendment rights of a U.S.-based defendant, a U.S. court might find that it is against public policy to enforce it. That important issue has been touched on in several U.S. cases but has not yet been answered.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, “Doing Business on the Internet” and “Emerging Technologies and the Law.” He also co-writes the New Media & Technology Law Blog.

By Julian Sanchez | Published: September 25, 2008 – 10:44AM CT

At long last, John McCain and Barack Obama can pantomime lightsaber duels or get their Numa Numa on like any other red-blooded American. In a move that a spokesperson for Sen. Dianne Feinstein (D-CA) called “a major step into the future,” the Senate Rules and Administration Committee has deigned to permit links to third-party sites like YouTube and Flickr from Senators’ official pages.

Roll Call reports that the change was made last week, ending the oft-ignored ban, but preserving general rules against using official resources for either commercial or partisan political purposes. The details will presumably need working out as, for instance, an embedded YouTube video will typically display a list of “related” videos after it ends, over which members of Congress would have little control.

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By Nate Anderson | Published: September 23, 2008 – 06:20AM CT

Large Chicago law firm Jones Day is suing a tiny Internet startup called BlockShopper over the use of the humble hyperlink. But BlockShopper has picked up a pair of allies in the form of the EFF and Public Citizen, and the two groups jointly filed an amici curiae brief with the court that points out the obvious: “linking is what web sites do—that is, after all, why it is called the ‘World Wide Web‘.”

BlockShopper’s transgression, such as it is, appears to be the posting of public information. The site shows which partners, lawyers, philanthropists, and executives have purchased properties in specific city neighborhoods, and it incurred Jones Day’s legal wrath after showing the new purchases of two Jones Day lawyers. The company sued on trademark grounds, claiming that the use of its name and web link on the site were illegal.

Last Friday, two public interest groups have stepped up to the plate and weighed in on the case because of its implications for the Web. The BlockShopper case has “potentially significant implications for other online speakers,” says their filing, which is putting it mildly.

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By Nate Anderson | Published: September 23, 2008 – 06:20AM CT

Large Chicago law firm Jones Day is suing a tiny Internet startup called BlockShopper over the use of the humble hyperlink. But BlockShopper has picked up a pair of allies in the form of the EFF and Public Citizen, and the two groups jointly filed an amici curiae brief with the court that points out the obvious: “linking is what web sites do—that is, after all, why it is called the ‘World Wide Web‘.”

BlockShopper’s transgression, such as it is, appears to be the posting of public information. The site shows which partners, lawyers, philanthropists, and executives have purchased properties in specific city neighborhoods, and it incurred Jones Day’s legal wrath after showing the new purchases of two Jones Day lawyers. The company sued on trademark grounds, claiming that the use of its name and web link on the site were illegal.

Last Friday, two public interest groups have stepped up to the plate and weighed in on the case because of its implications for the Web. The BlockShopper case has “potentially significant implications for other online speakers,” says their filing, which is putting it mildly.

read more…

By Nate Anderson | Published: September 18, 2008 – 05:34AM CT

R.E.M. once sang about “the end of the world as we know it,” but Michael Stipe & Co. never suspected that the brat-loving, cheese-eating, grain-growing Midwest might be the source of the world-ending scourge. But a pair of recent federal court cases coming from Wisconsin and Illinois have threatened to turn the most primitive functionality of the web—the hyperlink—into an “ask permission before linking” system.

Perhaps the full lyric should run, “It’s the end of the web as we know it, and I feel fine,” except that it’s hard to feel to great about the end of the web.

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