It's not enough to bash in heads, you have to bash in minds
            

Climatologist sues National Post, asks for troubling precedent

Andrew Weaver has been the recipient of some rather nasty commentary from some less respectable members of the Canadian press writing in the National Post. This sector of the press has over the years, but especially since the CRU email leak, shown a consistent disregard for reality.

Weaver feels that his reputation is being unfairly tarnished “by a a series of unjustified libels based on grossly irresponsible falsehoods that have gone viral on the Internet”, and he is fighting back. He has launched a libel suit against the National Post newspaper and its publisher, editors and three writers: Terence Corcoran, Peter Foster and Kevin Libin.

Holding media organizations, and story writers responsible for the content the produce is absolutely essential, especially as any allegiance to the truth has been thrown under a bus by many reporting on this issue. Blatant falsehoods are spreading like wildfires; corrections and retractions are almost nonexistent.

Even worse, threats against climate scientists are now common place:

One symptom of this shift is the ongoing campaign of cyber-bullying directed at climate scientists themselves. Any climate scientist in the news now receives a torrent of aggressive and abusive emails. As Stanford’s prominent climatologist Stephen Schneider says: “It’s ugly death threat stuff; ‘You belong in jail,’ ‘You should be executed.’ [This] never happened… a year ago. [But] now it’s off the charts.”

The climate change deniers efforts to intimidate is not confined to verbal threats. Schneider reports that climatologist Ben Santer found a shredded animal on his doorstep late one night after someone rang his doorbell.

Targeting individuals at their residences is a strong indication that the intimidation campaign is determined and well-orchestrated. Internet sites like Climate Depot focus the efforts of an emerging army of aggressive bloggers

The status quo cannot be allowed to stand; some form of accountability is required, and the articles mentioned in the suit, and many more, are contributing to the misinformation that is leading to threats of violence.

It is a shame that the media organizations are not willing to do this themselves, and that people like Weaver have been forced to go to the courts in order achieve the most basic form of accountability.

But Andrew Weaver goes too far.

His suit also identifies four anonymous commenters who also made some equally, if not more libellous comments against Weaver. And while I agree, that these comments are reprehensible, the suit lays responsibility for those comments on the National Post.

If successful this sets a troubling precedent, and threatens the concept of safe harbours (which are not codified in Canadian law). The safe harbour principle states that service providers should not be held accountable for the actions of their users. This is what removes YouTube from any liability when someone posts videos that break the law in one way or another, or when commenters make obviously defamatory and liable comments. Without safe harbours, service providers would be forced to police all user user uploaded content. For many this would make offering such services unfeasible, and we would all be worse off because if this.

The situation with the National Post is more complicated. As a publisher it should absolutely be held responsible for the articles it chooses to publish. But comments are different. The comments are user generated content, and the National Post offers the service of allowing readers to comment on those articles. The comments, reprehensible as they may be, are not the responsibility of the National Post; they are the responsible of their respective owners… at least that is how it should be. Otherwise every website (this one included) could be sued for the comments posted by others.

The correct way of addressing inappropriate comments, is to convince a judge to get the website where the comments are posted to release all the extra information collected when the comment was posted. Things like email address and IP addresses can help identify the commenters so legal action can be brought against them, the people responsible for comments. But this action requires more work, and must be conducted with the knowledge that the comment authors may never be identified.

At most, the courts should be able to compel the removal of an offending comment, but they should never hold the site owner responsible for them.

But Weaver goes even further:

But the suit contains accusations of libel and maliciousness that are targeted at the standard practices of many websites (including Ars), such as allowing user comments and encouraging readers to alert their friends of the stories…

The common “share this” features that many sites rely on to increase traffic are also mentioned in the suit. Anyone who has followed the public arguments over climate change would fully expect that the text in question would also appear on the usual collection of blogs (with names like “climatehoax” and “climatechangefraud”) run by the community that considers itself to be climate skeptics. The suit alleges that the publisher “knew, intended, and expected” that its defamatory material “would be republished by third parties on the Internet.” The evidence here? Links at the bottom of the online versions of the stories, inviting readers to e-mail the contents to friends or share them via social networking services like Facebook.

This is particularly troubling. There is little doubt that the National Post knew that these stories would end up on denier sites. But it also knew that the stories would be posted else where, likely in places that pointed out the many factual inaccuracies of the articles. That is the point of the ‘share this’ button, it is there to help more widely distribute the content. But the content would have been shared even if there had been no ‘share this’ button.

By claiming this is malicious in the suit, Weaver goes against the very nature of the internet. Sharing stuff we find interesting or reprehensible is an integral part of what makes the internet valuable. The National Post should not be criticized for making this common internet activity easier.

And then Weaver goes even further:

And that’s before Weaver goes after the skeptics’ echo chamber. As part of the remedy, he wants the National Post to hand over the copyright to the offending works. It’s strongly implied that, once in possession of the rights to these documents, Weaver will attempt to force any of the bloggers who have reproduced the text to pull it down.

Using copyright to silence critics, even libellous ones, is not the proper way to deal with them… tempting as it may be. Aside from being an inappropriate use of the law, it is a common tactic used by people with no justification to silence their critics. This is particularly a problem in jurisdictions where notice and takedown laws exists such as in the US.

Obviously I am not suggesting that Weaver has no justification against his critics, only that he is using the wrong approach:

Weaver’s suit appears to have documented a pattern of casual disregard for reality in the plaintiff’s editorializing against him. But, even if the words are ruled defamatory, it’s difficult to support the presentation of common Web practices as evidence of maliciousness, or the proposed remedies, which seek to erase any presence of the offending text.

Weaver should fight back against the irresponsible reporting of the issue, and the libellous statements made by the National Post. But the approach he is taking is overly broad and and if he wins sets a very troubling precedent.

6 Responses to Climatologist sues National Post, asks for troubling precedent

  1. Well Dan, that’s why we have courts and judges and the Rule of Law. I’m sure the same arguments you’re making will be advanced by the Post and (presmably) one or more intervenors. This is an historically well-defined area of law even if the vehicle for expression of statements has morphed somewhat. The Post is big enough, in any event, that if it considers it has been mistreated at the trial level (assuming this gets to trial), it has appeal options to the BC Court of Appeal and the Supreme Court of Canada. Cases like Weaver’s are the force by which law evolves to meet our changing times. Let’s hear both sides of the argument and then pass our own judgment on their merits.

  2. To me, the user postings included in the Statement of Claim indicate how the articles defamed Prof. Weaver – ie this is the negative view these readers now have of him. I think that web sites associated with formal or informal media entities, or sites that are known to have a large amount of traffic, should be held to a higher standard. If a large outlet IS found guilty of libel but is not required to (attempt to) remove the offending piece from all other sites, then this sets the precedence of a kind of ‘libel by surrogate’, whereby the outlet publishes the defamation then takes it down – but meanwhile it lives on at various other sites and archives.

    It seems like quite a different matter if, for example, viewers post malicious comments in response to a positive item. Also, I assume that most large media sites use a degree of moderation which should allow them to ignore and/or remove libelous material.

    The history of NP’s treatment of climate change has large implications.

  3. This seems a fuzzy area of law in Canada, so I’m glad Weaver has a very knowledgable lawyer. The USA is messier (state law), and the Internet just makes it all weirder.

    While I cannot prove it, I think it very likely that this kind of thing is at least partially intended to induce harassment of targeted scientists. I know at least half a dozen personally who regularly get death threats or worse.

    As far as I know right now, there in essence is no penalty for running a website that acts as an echo chamber for this stuff, and the Internet unfortunately has eliminated a lot of the impediments to incivility.

    It may well be that the anonymous folks are brought in to show that people were indeed listening to what the NP said. In some places, that matters, I don’t know about CA.

    I expect there will be many court cases over the next few years that cover this and related areas.

  4. @ MoS

    that’s why we have courts and judges and the Rule of Law… This is an historically well-defined area of law even if the vehicle for expression of statements has morphed somewhat

    I would say that the ‘vehicle’ has metamorphosed into something completely different, where the old rules no longer fit. This problem is exasperated by the fact that in general the judges ruling on these matters seem to have a poor grasp of the new norms, and the broader implications of their ruling.

    The Post is big enough…

    I think you misunderstand my point. The Post is big enough that it can defend itself, that isn’t the issue. The issue is the precedent this can set, and how that may create a chilling effect and apply to people who cannot defend themselves.

    @ Eileen

    To me, the user postings included in the Statement of Claim indicate how the articles defamed Prof. Weaver – ie this is the negative view these readers now have of him.

    That was not my understanding, but then again I am not a lawyer.

    I think that web sites associated with formal or informal media entities, or sites that are known to have a large amount of traffic, should be held to a higher standard.

    That is slippery slope territory.

    If a large outlet IS found guilty of libel but is not required to (attempt to) remove the offending piece from all other sites, then this sets the precedence of a kind of ‘libel by surrogate’, whereby the outlet publishes the defamation then takes it down – but meanwhile it lives on at various other sites and archives.

    That is a feature, not a bug. As John Gilmore said “The Internet interprets censorship as damage and routes around it.”

    Also, I assume that most large media sites use a degree of moderation which should allow them to ignore and/or remove libelous material

    Asside from spam filtering, many do not. I would argue that it decreases the value of the comment sections, but I would hate to see moderation mandated by the courts. That would create a massive chilling effect.

    The history of NP’s treatment of climate change has large implications.

    Absolutely. And I applaud Weaver fro going after them. It is the other stuff he wants that worries me.

    @ John Mashey

    While I cannot prove it, I think it very likely that this kind of thing is at least partially intended to induce harassment of targeted scientist

    It does seem that way. Still the approach by Weaver is likely to make him more enemies from people like the EFF and its supporters.

    As far as I know right now, there in essence is no penalty for running a website that acts as an echo chamber for this stuff

    No, there really isn’t. I assume one could go after the echo chamber sites in the same manner that Weaver is going after the National Post.

    I expect there will be many court cases over the next few years that cover this and related areas.

    Agreed. But not because of what is going on in regards to climate science reporting, but mainly because the internet, and particularly the rise of user generated content has dramatically changed the rules, and the law has yet to catch up.

    Hopefully those updating the laws will have a firm grasp of how the world has changed.

  5. Yes, we agree, I noted in CCC V1.0:

    “…have been widely used in the Internet, which is probably a good thing on balance, but human society and laws have not quite caught up with the downsides. May they do so soon.”

  6. Unless I’m getting this wrong, transferring copyright to Weaver won’t prevent people from quoting from the offending text for further commentary (fair use). It’ll only stop people from cutting-and-pasting the original libelous pieces wholesale — which till now has been going on with the tacit approval of the National Post. I think that’s a good thing!

    When Weaver starts suing people left and right for quoting 5 words from one of NP‘s articles, then I’ll complain.

Leave a Reply