I don’t know if any of you have ever been in this position, but two of my friends are currently being sued by a man who I once saw in his underwear. Stranger still, they’re being sued for libel, not because of anything either of them wrote, but rather for something that someone else wrote.

No? That’s never happened to you? Well then, do read on. But first, some basic understanding of both libel law and wiki technology is required. This post is way longer than anyone should be subjected to, but please bear with me. This is important stuff, and I’ll try to insert jokes whenever I think you might be getting bored.

What The Heck Is Libel?

Libel is the written or published version of defamation of character (as opposed to slander, which is verbal and unpublished). Canadian libel law is very old, having evolved from British common law (meaning law that evolves based on the rulings of judges over time, forming legal precedent). One of the most interesting things about libel in Canada is that it reverses the burden of proof, such that the defendant is actually guilty unless they can prove themselves innocent. In other words, the plaintiff does not have to prove that what was said about them was false; instead, the defendant must prove what they said was true.

One of the other interesting things about libel law in Canada is that, according to lawyer Michael Geist, it’s actually treated more seriously in some ways than hate speech, or the undeniably horrendous crime of child pornography. While child pornography and hate speech both require a court order to be removed, websites can be forced to remove allegedly libelous content based on the allegations alone, before anything has been proven.

This has lead to what’s known as “libel chill” or a “chilling effect.” If you happen to be someone who can afford to throw around lawsuits, you can get content about yourself removed simply by threatening legal action. You don’t even need to worry about being right or having evidence. The “chill” is the resulting chill on free speech. If I know someone might sue me for libel, even if I’m telling the truth, I’m less likely to say anything at all. (Especially if I’m not wealthy, and the person threatening to sue is.)

What The Heck’s A Wiki?

I suspect many of you already know this, so let’s just do a quick primer. A wiki is a type of website that lets visitors edit the content of that site, making it particularly useful for collaborative authoring. The most famous wiki is Wikipeida, a free encyclopedia written entirely by volunteers that in just five years has generated over a million articles with an accuracy rating that rivals that of Encyclopedia Britannica. I mention this to demonstrate what a powerful tool wiki is, and how valuable it is for our society.

One feature critical to the success of wiki technology is that each article on a wiki has a “history,” which records every edit ever made, and allows visitors to view every version of the page that has ever existed, as well as the current version. (For example, here’s what my Wikipedia entry looked like on December 13, 2005, here’s what it looked like on December 27th 2005, and here’s what it looks like now, having been merged with another article.) This feature is essential in order for a consensus viewpoint to evolve, as well as to ensure that vandalism can be easily reverted.

It’s not an exaggeration to say that a wiki is unlike any other communications tool we’ve ever known. And that, as we will see, is part of the problem.

Ok, so What About the Dude in the Underwear?

Fair question. Let me back up a few steps.

A friend of mine, Michael Pilling, runs a wiki website called OpenPolitics.ca. It grew out of the Green Party of Canada’s Living Platform, and is a non-partisan forum for Canadians to discuss political issues. Michael was actually the Head of Platform and Research for the Green Party of Canada in 2004, and canvassed for me in 2006. He has a one-year-old daughter.

My other defendant friend is Hayley Easto, who has only a loose affiliation to OpenPolitics.ca (in that, when it was first created a year ago, she was named as one of the chief editors of the site).

They’re both being sued not for anything they wrote, but rather for something that an anonymous person wrote on OpenPolitics.ca.

The man suing them is Wayne Crookes, who was my roommate at the 2004 Bragg Creak Green Party of Canada convention (thus the underwear thing). We didn’t talk much, but he seemed like a nice enough guy, and we had breakfast together on the last morning of the convention. It’s very strange to know that on both sides of this suit are real, regular people. Until now, lawsuits have always been more abstract than that.

What the Suit’s About, and Why it’s so Strange

As mentioned above, Wayne is suing over comments that were made about him on a page on OpenPolitics.ca. I won’t repeat what was said, because then he could sue me too. Suffice it to say that Wayne felt that the comments could lead a reader to form a negative opinion of him.

By now you should be asking yourself, if these comments were made on a wiki, and a wiki is so easy for anyone to edit, why weren’t they just edited out? Well, they were. Michael moderated the page and also offered to explain to Wayne how to do so himself, and/or to post his side of the story for him. Wayne was uninterested, but Michael changed the page to reflect a more neutral point of view anyway.

So, that should be the end of the story, right? The offending content was removed, and everyone can go home happy. Except for one little problem: the version of the page that Wayne objects to is preserved in that page’s history, just like all edits on a wiki. So there is, and will always be, a version of it that exists. As I understand it, Wayne is actually suing over the content of the history page, not the main article. That’s part of what’s led Michael to observe that “there is currently no legal way to operate Open Politics in Canada.”

So What Do We Do?

You’ll remember that thanks to British common law we have two kinds of defamation, libel and slander (written and spoken). Slander is generally treated more leniently, and evolved back before so many of our conversations took place over wires. As people increasingly communicate with each other over instant message, email, message boards, blogs, and wikis, those conversations (which used to take place in person or over the phone) become the domain of libel law instead of slander. One possible solution suggested by Michael is to make these new forms of electronic discussion subject to slander law instead of libel.

Whether that happens nor not, it seems obvious to me that we need to update our laws to acknowledge the fact that an anonymous (or even attributed) defamation on a wiki today is very different from an attributed defamation in a newspaper a few decades or centuries ago when our laws were formed.

For example, let’s say I jumped in a De Lorean and traveled back in time to 1885. While I’m there, a newspaper publisher prints a bunch of lies about me, namely, say, that I’m “yellow” and “a chicken.” I’d be relatively powerless to respond, given the power and reach of the newspaper. Also, the fact that those lies were being made by someone with perceived authority and reliability would make them even more difficult to refute.

Today, however, if an anonymous person lies about me on a wiki or a blog, I’m able to easily respond with the same reach as that person. Further, I can likely respond with even more authority, since the fact that that person is anonymous (and not backed-up by a professional journalist, as is the case with “anonymous sources”) should lead any reasonable person to question their reliability. Therefore, libel on a wiki or (to a lesser extent) a blog shouldn’t be treated with the same degree of severity as libel in an older type of publication. Not only does the target of the alleged libel have a “right of reply,” they have an impressive and unprecedented ability to do so.

Finally! A Conclusion!

Wayne, of course, still has a right to have his reputation protected from unfounded accusations (if that is in fact what’s happened). But if he were to win this lawsuit, that could mean, at a minimum, that it would be very difficult to legally and safely operate a wiki in Canada. Even if the lawsuit fails, the chill will remain, inhibiting free speech. Another lawsuit threatens the free speech rights of bloggers. (In that suit, p2pnet.net is being sued in part because of something that was posted as a comment to a blog post. So watch what you say when commenting on this post, I don’t have any interest in a lawsuit right now.)

I’ve called this situation “silly” (because it is), but it’s also very serious. I could devote another even longer post (oh yeah, speaking of that, thanks for making it this far) to the priceless value that wikis and blogs contribute to the level of discourse in this country, and therefore to the strength of our democracy. A balance needs to be struck to preserve these tools, and to preserve free speech, while still protecting people like my ex-roomie Wayne from libel. Otherwise, we will have moved backwards on what is a very exciting path towards the democratization of decision making, and of the web itself.

ps. I attended an event on this very topic this past Saturday, at which a lawyer lamented the fact that people now feel the need to preface their online comments with “I’m not a lawyer, but…,” since everyone should feel entitled to express their opinion regardless of their profession or education, and without fear of legal action that could apparently result from their failure to disclose their non-lawyer status. That being said, just in case you were wondering, I’m totally not a lawyer. In fact, it’s only recently that I’ve even learned to spell the word, so there.

Tags: wiki, wikipedia, libel, law, sue, lawsuit, open, politics, openpolitics, free, speech