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Is there freedom of speech in Canada? I am not so sure today (62)

June 18th, 2007 · by Heri · Technology

The Globe and Mail has an article about Chris “Zeke” Hand’s case. I have written previously about the case here, the day after he received the letter from the lawyer. The story can be summed up to:

  • Chris “Zeke” Hand, an art blogger who also has an art gallery, writes about a current crime story in Montreal and tells about an ex-gallery owner who was publicly associated with the suspect (in RadioCanada and Le Devoir),
  • the ex-gallery owner sees the blog post as the top Google results for his name,
  • he sues Chris for libel,
  • Chris publishes the letter and all other materials,
  • the fellow continues with further legal actions,
  • judge is with the fellow and tells Chris to pay damages

As I understand it, Chris Hand expressed his opinion and linked to stories published on major news source, which the majority of bloggers is doing. This case proves that by doing so, you can be sued for your opinion and get the website shut down. The laywers can also force you to express public apologies and pay damages.

I thought this was not normal. We hear and read so much about first amendement from the South that I assumed it was the same thing in Canada. But after research, it seems “freedom of speech” is just a theory in Canada. For instance, American Journalism review says:

In the United States, the free press almost always prevails. Since 1976, when the Supreme Court voided a gag order on the news media in a murder case in Nebraska Press Association vs. Stuart, it’s been almost impossible for a trial court to control pretrial publicity, even if it might prejudice potential jurors. The high court said that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed unconstitutional, especially if the information involved is derived from a public proceeding…

… Courts in Canada still occasionally impose publication bans and will hold news organizations in contempt of court if they violate them. The result is that Canadian journalists generally respect these orders.

Furthermore:

Under current Canadian law, intermediaries can face potential liability for failing to remove allegedly defamatory content once they have received notification of such a claim, even without court oversight.

As a result, many ISPs and websites remove content in response to unproven claims, even if they privately doubt that the content is indeed defamatory. From the company’s perspective, there is no legal risk to remove the content, yet there is potentially significant risk for failing to do so.

In Montreal, Hugh McGuire wrote today:

The Montreal and Canadian blogging, free speech, rational people communities ought to be up in arms. I urge everyone to at least write about this to get this info out. It’s a real danger to all of us who write what we think online.

Today, I am in shock from the cases reported by American Journalism and in the Globe and Mail article, and asking myself questions on the validity of blogging in Canada. There is really no point continuing writing (on this blog for instance) if a judge took the fellow’s case seriously. Hugh is one of the rare bloggers who understood the importance of this case, but this is not enough. If this case don’t get dismissed, this means you will never see negative “opinions” on this website and that I should just consider some happy talk. And if that ever happens, Montreal Tech Watch will close.

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