Dear readers,
The Coast went through a legal situation recently regarding privacy and online commenting, and on our lawyer’s advice we were uncharacteristically quiet about it in the paper and online. Of course, people have still been talking about it.
Walking out of a Nova Scotia Supreme Court courtroom last week and into the business end of a scrum of reporters and cameras was a major Backwards Day moment for me. Instead of asking questions, I was answering. And when it was over, and the journalists printed and posted and broadcast their stories across the country, the Backwards Day effect continued. A story involving The Coast generated approximately a bajillion comments and at least one phone-in radio show, and The Coast didn’t mention it.
I’m sorry that you had to hear about it someplace else. Now that the legal fog we’ve been in is clearing, and we can talk about it, you’re probably tired of the whole mess. Believe me, I understand, and will take no offence if you skip to the next letter.
We were in court because somebody wanted information from our website’s logs in order to launch a defamation suit against some of our online commenters. Internet Protocol information in particular is a sort of digital fingerprint, as the IP address can pinpoint quite closely where in the offline world a comment came from. Constant IP tracking is a feature of the internet, and it means that very little online activity happens in an anonymous vacuum.
People often approach The Coast asking for IP addresses so they can try to get hold of a member of our online community. No matter the reason—from Who is my secret admirer? to Who do I sue?—if we just handed over the info we’d probably be violating privacy laws. So in this case we gave the standard answer: That is information related to our business, and we won’t share unless you get a court order. Soon enough we were in court, where Supreme Court Justice M. Heather Robertson granted the order forcing us to surrender the IP information.
Like Google, who was also named by the court order, we didn’t put up a fight in Justice Robertson’s court and we surrendered the information as required by the order. This decision inspired second-guessing from various armchair lawyers online. The Coast should defend its journalistic sources, they said, or at least ought to honour its committment to protect anonymous commenting. One commenter on the Globe and Mail site said that “apparently some low-ranking district court judge now makes law. Congratulations on one of the most backward decisions in recent history.” My favourite comment is the one that starts: “IMO, it’s not ‘libel’ if….”
But the laws are not what we want them to be; they are what they are. Although lots of things about how the internet fits into the legal system are still being worked out, the laws of libel and defamation definitely include such things as online comments. Not only was the Supreme Court judge well within the law when she ordered us to surrender the IP addresses, but our highly experienced media lawyer says judges grant these sorts of court orders all the time.
We don’t hear about most of these cases. We hear about the exceptions, the hard-fought contentious cases that may set a precedent. But the current situation was never going to be one of those. The commenters were not journalistic sources who were promised anonymity; they were people who chose to say things on our site—things that violated our policies and which we apologized for permitting on the site. We could have claimed they were sources, but there are legal tests that decide whether someone really is a source, and this situation failed them all. Similarly, while we allow anonymous commenting, we do not promise confidentiality.
There may be an argument to make about free speech, but it’s not necessarily applicable in this country. Canadian law is a much different beast than American law, with its oft-repeated guarantees for freedom of expression. It is significant that the American icon of the untamed frontier is the cowboy, while Canada’s is the Mountie. Here, internet commenters are “like other people,” as Justice Robertson put it in her ruling, and “have to be accountable for their actions.”
That said, we have enough freedom that you don’t have to agree with our decision or the judge’s. But you should be aware this doesn’t change anything in terms of anonymity and commenting at thecoast.ca. The discussions are an important part of The Coast online; they are wide-ranging, open to practically anyone, full of free language.
However, that doesn’t mean they are perfectly anonymous and confidential. We don’t guarantee anonymity, we can’t guarantee it and if you choose to post a comment on our site, we can only protect you as far as the law allows. –Kyle Shaw, editor, The Coast
This article appears in Apr 22-28, 2010.
Makes sense to me. Gotta love the pajama clad experts sitting at home in front of their computers, eh?
Thank you for clarifying the issue Kyle. I think too many people had a knee-jerk reaction to the situation, losing their marbles over something that they didn’t fully understand, and the silence from The Coast proper didn’t help, as the media and the community itself began to froth at the mouth. Hopefully those who have the issue about anonymity now have a clear idea as to what is allowed on or expected on The Coast’s forums.
I have been waiting to hear the ‘other side’ of the story. In fact, I have checked periodically in the editorial section looking for your explanation (I was starting to think you had been given a gag order = p.
First, hearing about it from somewhere else was startling. Then, not hearing anything afterwards (especially since it was a bit of a ‘hot’ news item) was dismaying…almost to the point of suspect (why are you not saying anything in light of all of our questions, concerns and speculations).
I can only speak for myself, but the main concern was not that you gave up the information, but that it appeared that you did not hesitate to do so. It appeared that you distanced yourself immediately by saying that you felt no responsibility to these people since they were ex-members of the community.
Now, of course, I don’t know what was permissible in court that day, but I felt that the context within which the posts were written should have been explained. I felt that if the nature of the site was understood then perhaps it would be seen by the court that the intent of the posters was not necessarily malicious. I thought that considering this might cause the judge to question the intent of the officials (why they chose to take personally anonymous comments).
My concern is also that in not defending the context within which the posts were written, you unwittingly played a part in what could actually be a ploy. Is it not possible (even likely) that the intent of the legal move (since no charges have actually been laid) is not to charge unknown people for libel but to expose and punish what could potentially be employees within the department? I mean, there were other comments that could be interpreted as slanderous but only a specific few were targeted. And, although I don’t what the comments were, it was stated that the officials were called racists. Obviously, a minority group would be among the most likely to call out that name. And, all in all, there was good chance that it was black firefighters who saw an opportunity to cut through the binding ‘chain of command’ to express their anger, disappointment and frustration–feeling safe to do so under the cover of anonymity (regardless of the fact that they were naive to think that it actually provided them with fail-safe protection).
I understand that ‘some of us posters’ had the luxury to view all this from a distance–without the threat of legal action impacting our reasoning–but I think you can understand why we felt that an injustice had been done.
Regardless, you have explained that you did not just roll over–that you did resist by demanding a court order. And, if our unqualified-to-make arguments actually have any bearing, I am sure the lawyers of these posters will be sure to present such things as context and intent (if the charge of libel is truly the purpose in exposing the posters identity). As well, I am sure (or least I hope) that you will be following the outcome of providing the identities to the officials, as I hope that you will continue to pursue the validity of the initial charges of racism.
Anyway, thank you for providing an explanation. It cleared up some confusion, clarified some misunderstanding and let us know specifically the boundaries within which we can voice our ‘opinions’. ~HKM
ddd
Pajama clad experts…? How is your pablum? Warm enough?
Cranky want a cookie?
Nice avatar there late term.
John,
It’s not that I feel that the matter has been excused or cleared up, it’s that I feel that sometimes a person has to lose a battle in order to gain the experience necessary to win a war. I’m giving Kyle the benefit of doubt. I’m assuming that he got so caught up in his (first?) legal assault–that he was immediately put on the defensive. It’s unfortunate that he wasn’t able to step back and reflect on all the possible outcomes of his chosen course of action. Had he had that luxury, it might be that he would have regrouped and planned his own assault.
Regardless, the damage has already been done. What he does to counteract that damage is what matters now. Specifically, the Coast must take a stance on whether or not it supports the right of people to express their opinions without fear of punishment. And, if they do believe this, they must back the people who are expressing opinions in their paper. (That is not to say that they must guarantee anonymity only that they will fight to protect it if need be.)
If they are not prepared to do this, then they must be clear to their contributors that they (The Coast) do not support free expression and that all comments must be carefully considered before posting–that each person will be held personally libel for any comments that they do make.
Of course, this pretty much eliminates the very thing that drives the bitch section so there is no point in continuing that. The comments section will have to be monitored. Hell, in order to appease any people who might take offense, it could be that the Coast will have to re-construct its entire format. And, since we already have a ‘safe’ paper in this town…well, it was nice while it lasted but once the idealistic bubble bursts, there is no going back.
Kim
Don’t I feel like a fool standing here with egg on my face…
delete me as well, Coast.
Since my comment was a response to John’s (very controlled for him) opinion which you censored, leaving my (apparently naive) opinion here is pointless.
Lol, that’s OK Kim…
If I were Kyle Shaw I’d want to remove any posts that come a bit too close to the truth as well… Of course, well, I’m not him. And I don’t have a “newspaper”.
If you didn’t think his actions last week were an assault on freedom of speech, at least we now know exactly where he stands…Speech is great as long as it’s something we agree with or that’s comforting to hear.
Of course, The Coast is his “newspaper” and this is his site, and so he is free to “censor” any criticism as he sees fit. He is also the “owner” of all his readers’ IDs and every post they have ever made here. Wow.
Personally, I think by removing my rebuttle to his “letter”, as well as the link to my facebook site about the issue, (and barring me from the Coast FB AND removing my link THERE as well) he is acting like a proper buffoon; the type of self-righteous egoist that his paper generally rails against…
If I were a politician/developer/businessman, I think that if this “journalist” thrust his dictaphone under my nose, I’d find it hard not to burst out laughing and walk away.
At any rate, HKM and ?? have both made the pertinent points on this thread, and are worth re-reading, and of course “Dr Fever” has weighed in on behalf of the head-in-the-sand crowd, so perhaps it’s time to move on. Maybe I did go too far with my characterization of the Coast editor as having “clown feet”, a forked tail and that he was paid off with a ride in the shiny new HRM fire truck, who knows… Now with my post deleted, you’ll not even have a chance to judge for yourself.
It’s made great fodder for my facebook site though…being “removed” from a site that allows the most atrocious language and vulgarity, simply for a sharp criticism of the editor is a great honour…I’m blushing with pride, Ann Coulter-like!
Good luck with your “newspaper” and website Mr Shaw. Hopefully, with persistence, you’ll get that harbour clean one day!
If this comment “vapourizes” as well, read all about it HERE:
(quick, write it down!)
http://www.facebook.com/group.php?gid=1131…
I was hoping you saved it. I felt it was a good response although it was pitbull-like (and you know how Halifax feels about pitbulls = ). I wanted to re-read it to see why it was deleted.
I assume that it was due to your statement:
“Nice little trick they pulled, and you fell for it.”
Until the chief makes his next move, we can’t know for sure if the whole thing was a ploy to root out employees. In your response, you assume this to be the case. Best case scenario, the Coast was protecting you from your own libel suit (although, they could have simply cropped the libelous area and left the rest). But, in light of your being muzzled in other Coast areas, it is likely you are being banned more for the force of your content rather than the content itself. Of course, until they actually block your IP address, you are still welcome to voice your opinions. Regardless, it DOES stink.
My fear is that we will never know what motivated of the chief to seek disclosure of the anonymous posters. I have made my expectations know to the Coast that I assume that they will follow the outcome of their actions–that if firefighters were among the exposed posters and as a result are harassed, dismissed or charged (especially if any posters who are not firefighters are overlooked), then the Coast should let it be known.
Frankly, after stating our awareness of what truly might have motivated them, and our very vocal protests, they would be stupid to pursue any obvious action if we are right. In fact, if we are right, I would love to see them act on it. Can you imagine what that will do for both the black firefighters and the freedom of speech camps?!
By the way, I was hoping that it would be obvious to everyone that HKM, ?! and Kim were all the same person. I changed HKM to no name and the picture to a masked nobody to make a point. Which is also the reason I decided to discard everything I contributed before the ‘Coast Rats on it’s Readership’ Incident. I started a fresh account with my real name (anything but is pointless and therefore silly) and a new awareness that anything I contribute is subject to legal action regardless of context.
Frosty, I find it interesting that you use Facebook, a site known for it’s unabashed ownership of your information, even down to the point that they essentially own your photos in perpetuity. But hey, whatever, right? To me, that’s more than just a little hypocritical.
But go and be outraged continually while you interchange ideas like “freedom of expression” and “freedom of speech”, which are two entirely different ideals. The Coast did not just roll over, and the judge was right in requesting that information. The Coast is not here to protect you if you step outside the boundaries of the law, and is very upfront about it’s policies when you sign up for an account. If you can’t read the preambles, well then maybe you should hire a lawyer and have them explain it to you, because clearly, you don’t understand plain English.
This is all notwithstanding that The Coast published HKM’s excellent rebuttal to this letter in this week’s edition.
But, you do what you want. Who am I to judge? You clearly feel that a private company should protect you from any and all legal action because you want to be a complete dick on an internet forum.
Dr. Fever,
Frosty is not the bad guy here–in fact, in his own brazen (sometimes twisted) way he is actually trying to be the good guy. Yes, his style can be abrasive–often insulting. And, when approaching the crossroad where good manners and tasteful dialogue lies to the right, rub-your-nose-in-your-mess-while-telling-you-how-bad-you-are lies to left and straight ahead is the road to telling-it-like-it-is-in-a-fair-and-constructive-way, he can’t seem to help himself–he inevitably veers to the left. Unfortunately, although sometimes his style can be very effective in getting results more often it stalls or sidetracks progress.
But, do I understand why Frosty was not appeased by Kyle’s explanation. It was not what l hoped it to be either. It didn’t address our most important concerns, it admitted nothing, it took no responsibility and in places it not only mocked us but it deflected any wrong-doing back at us. We felt that due to an implied understanding, regardless of how contradictory it was to the fine print, people were betrayed at some level. And…
ah fuck it…this diplomatic and carefully worded defense/protest is as tedious to write as it is to read…
Coast, you did do something wrong. You know it. We know it. Take responsibility. Clean it up. Learn from it.
That is all.
A sensible ruling on anonymity on the Internet
By PAUL SCHNEIDEREIT
Tue. May 11 – 7:07 AM
“The Ontario Divisional Court also held, in the case of Warman vs. Fournier et al., that the value of freedom of expression is so fundamental that defamation lawsuits against anonymous Net commenters are not entitled to automatically obtain information that could lead to their identities being unmasked.”
http://thechronicleherald.ca/Opinion/90163…
THAT is all.
There’s this one as well BMF
http://contrarian.ca/2010/04/19/the-coast-…
Fever you’re an idiot.
Great letter Kyle.
It’s true, there is no free speech in this country, and I can’t hold The Coast liable for the fact we are a lazy country who let whomever have their way with our “rights”
Two courts rule on identity protection for online commentators
POSTED ON MAY 17, 2010
Courts in Nova Scotia and Ontario recently issued conflicting decisions on the ability of a plaintiff to compel a website to reveal the identities of online commentators.In both cases, the plaintiff in a defamation suit sought the identities of individuals who had posted allegedly defamatory comments to a website.In the Nova Scotia case, the court granted the order; in Ontario, the court refused it.The Ontario decision made it clear that such orders are not automatic – the court must be satisfied that there is a prima facie case for defamation, and must also weigh the public interest in disclosure against the freedom of expression and privacy interests of the parties. These issues were not addressed in the Nova Scotia decision.
Mosher v. Coast Publishing
On April 14, the Nova Scotia Supreme Court ordered a newspaper to help identify seven people who posted allegedly defamatory comments on the newspaper’s website.The case, Mosher v. Coast Publishing Ltd., 2010 NSSC 153, involved a Halifax-based newspaper, The Coast, which had published online a story about racism in Halifax’s fire service.
The Chief and Deputy Chief of the Halifax fire department sought to bring an action for defamation against the individuals who had posted the comments. Before the action could proceed, the would-be plaintiffs had to apply to the court for an order requiring The Coast to provide information about the web commentators, who had identified themselves only with pseudonyms.
In granting the order for disclosure of the information, Justice Robertson stated that “the court does not condone the conduct of anonymous internet users who make defamatory comments and they like other people have to be accountable for their actions.”
Warman v. Wilkins-Fournier
Warman v. Wilkins-Fournier, [2010] ONSC 2126 (S.C.J.), decided just a few weeks after Mosher, on May 3, was an appeal of an order to disclose information that could identify individuals who had posted allegedly defamatory comments on an internet message board managed by the defendants.In making this order, the motions judge had found that disclosure was mandatory because the information was relevant and not protected by privilege.
The Divisional Court’s appeal decision disagreed with this, noting that Charter values of privacy and freedom of expression weighed in favour of non-disclosure.The court held that where privacy interests are involved, disclosure is not automatic even if information is relevant and not protected by privilege.The court also noted the potential chilling effect on speech that would result if anyone could obtain information about the identity of online commentators simply by initiating an action. An appropriate balance, according to the court, is established by requiring that the plaintiff establish a prima facie case of defamation before disclosure can be ordered.
The decision in Mosher does not include any analysis of whether a prima facie case was made out, nor does it consider any balance of rights to be met in determining whether disclosure would be appropriate under the circumstances of that case.
http://www.canadiantechnologyiplaw.com/201…
ex-Halifax Firefighter Challenges HRM group:
http://www.facebook.com/home.php?sk=group_…