A worldview on the challenges of citizen journalism and proving defamation online By David Wotherspoon and Christian Leblanc
The phenomenon of citizen journalism — also known as grassroots media, people’s media, participatory media, open source journalism and do-it-yourself journalism — is gaining momentum and prestige. Citizen journalism is not exactly a new concept. Leaflets and community newsletters have long provided ordinary people with outlets for their points-of-view. But the Internet has empowered citizen journalists with unprecedented access to a global audience and a new level of permanence to their comments. In one sense, a citizen journalist today is anyone with access to the Internet and an interest in telling a story. Savvy bloggers have the technological tools to compete with traditional journalists and media outlets on breaking news stories. Simple publishing software, handy mobile devices, and ubiquitous wireless connections are empowering ordinary people to actively create and disseminate news online. The distinction between professional and citizen journalists is becoming blurred. Many professional journalists now publish their own professional and personal blogs. Meanwhile, traditional news media are engaging citizens to provide reports — sometimes for a fee. And hybrid news sites, such as OhMyNews.com, use professional and citizen journalists equally to handle similar assignments. Even The New York Times has launched citizen journalism sites for communities in and around New York City, and CNN.com has long featured contributions from citizen journalists, particularly homemade news videos. But do these citizen journalists have the same obligations — and protections — as traditional media outlets? Given the global reach and permanence of Internet communications, citizen journalism is raising the stakes for the “responsible journalism” defense in defamation law suits. Because of the international nature of citizen journalism, it’s also useful to take a broader worldview of the topic, keeping in mind some of the case law in and outside the U.S. to understand how different countries view defamation on the Internet. Here, we’ve taken a look at three core issues of citizen journalism – jurisdiction, accountability and “responsible journalism” - and how they have variously been addressed by countries in the English-speaking Western world, where we see a great deal of overlap in news coverage.		David Wotherspoon, is a partner with Fasken Martineau in Vancouver. As a former news photographer, his curiosity about media issues transferred into his legal career as he pursued matters of defamation, publication bans, and other media issues. He does not Twitter. Christian Leblanc, a partner with Fasken Martineau in Montreal, specializes in media and communication law. He acts for some of Canada’s larger media enterprises on issues relating to freedom of the press and freedom of speech.

Jurisdiction

Cross-jurisdictional claims

Given the global reach of the Internet, what law applies when confronting defamation? Before launching a case, a claimant must establish jurisdiction.

But establishing jurisdiction can often prove quite difficult, as it was in the seminal case Braintech, Inc., v. Kostiuk. The company Braintech had, in 1997, obtained a default judgment of $300,000 for libel and disparagement claims after the defendant had posted defamatory material to an Internet message board.

However, the Supreme Court of British Columbia later determined the defendant’s only connection with the jurisdiction, in this case Texas, was a passive posting on an Internet bulletin board. Braintech attempted to enforce the default judgment against Kostiuk in British Columbia. Notably, there was no evidence of publication to any person in Texas, nor was there any evidence that Kostiuk had a business interest of any kind in Texas. The court held that:

“… The complainant must offer better proof that the defendant has entered Texas than the mere possibility that someone in that jurisdiction might have reached out to cyberspace to bring the defamatory material to a screen in Texas. …"

It would create a crippling effect on freedom of expression if, in every jurisdiction the world over in which access to the Internet could be achieved, a person who posts fair comment on a bulletin board could be hauled before the courts of each of those countries where access to this bulletin could be obtained.

Online communications are not available in comprehensible form until downloaded onto a computer. Therefore, establishing jurisdiction hinges on proving where a person downloads the material and where damage to reputation is done.

This point was explored in the Australian case of Dow Jones & Company Inc., v. Gutnick. Dow Jones hosted an online magazine that published an article containing allegedly defamatory references to the plaintiff. The plaintiff was successful by narrowing the scope of his claim to allege that the damage suffered to his reputation occurred in Australia as a consequence of publication of the defamatory article in Australia. Similarly in the Canadian case Burke v. NYP Holdings, the plaintiff alleged that a column published in the New York Post and posted on the newspaper’s Web site (maintained by the newspaper and available globally) contained defamatory content. Ultimately, the British Columbia Supreme Court assumed jurisdiction over the matter finding that the tort occurred when the column was accessed from within British Columbia.

Accountability

How Far Does Accountability Extend?

Sorting out the source of a comment — and its credibility — is increasingly difficult online. In the faceless world of micro-blogging sites, fake celebrities can tarnish the reputation of their targets in just 140-character messages. Yet the anonymity (or false identity) offered by the Internet is only one challenge in holding people accountable for their postings. Even when the author discloses his or her name, how are readers to determine if the statements are objective or accurate? Who qualifies as a journalist today? And what are their responsibilities and protections when reporting?

So far the relatively new “responsible journalism defense” has only been contemplated in the context of traditional media and journalism: professional, paid, accredited journalists and official news agencies.

Defamation is an offense. But a journalist in some jurisdictions can escape liability by arguing a comment falls under one of several legal defenses: truth or justification, fair comment, jest, statutory immunity, privilege, or responsible journalism. This last defense—responsible journalism—was first used successfully in England in 1999 in the case of Reynolds v. Times Newspapers.

The plaintiff, a former prime minister of Ireland, sued over a newspaper article that he interpreted as accusing him of intentionally misleading the legislature and lying to his colleagues. In its decision, the House of Lords considered three competing values:

1. The right of the public to access information on matters of legitimate public interest.
2. The ability of the press to report on such matters in a fair and responsible manner.
3. the protection of reputation.

In rendering the decision, Lord Nicholls said:

“…the common law has recognized there are occasions when the public interest requires that publication to the world at large should be privileged…. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.”

And so the defense of responsible journalism was born. This landmark made valid the media’s claim that — in some instances — it has a duty to publish an allegation even if it later turns out to be wrong.

The “Reynolds defense” was subsequently refined by the court in Jameel (Mohammed) v. Wall Street Journal Europe. The case concerned a report that the Saudi Arabian Monetary Authority was monitoring bank accounts associated with prominent businessmen to ensure they would not be used to transmit funds to terrorist organizations. The plaintiffs were among those named as under observation. In its ruling in favour of the media, the court provided for an increased freedom of the press as long as the media acts responsibly and in the public interest.

Some courts have relied on codes of ethics set by professional journalists’ associations and on internal codes of ethics of media organizations. Traditionally truth has been the best defense of all in defending against claims of defamation.

Citizen journalists

Does Responsible Journalism Apply to Citizen Journalists?

Can the responsible journalism defense apply equally to citizen journalists who run afoul of their subjects? There appears to be nothing, per se, that precludes applying the elements of responsible journalism to professional and citizen journalists alike. Perhaps it is merely a matter of assessing what is reasonable for a given journalist in a given context.

Looking at the deep pockets of Internet Service Providers, plaintiffs have attempted to name ISPs as defendants in defamation actions. They argue that ISPs share some characteristics with more traditional publishers—namely, the ability to edit content. But not all ISPs provide the same services. Some act solely as an access provider, connecting subscribing users with the Internet. Others provide email addresses, host content or host Web sites.

The law in other jurisdictions—particularly the United States and England—is inconsistent. To avoid a plea of innocent dissemination in the United States, the plaintiff must prove that the publisher was not innocent. Conversely, England does not presume innocent dissemination. Instead, the defendant publisher must establish its innocence to stand on this defense.

To date, Canadian jurisprudence does not speak directly to the liability of ISPs. Regardless of the services offered, ISPs are unlikely to act like newspaper editors so the law of innocent dissemination becomes relevant.

What does this theoretical risk mean in the real world? Consider a company contemplating using Web 2.0 to create an intranet site where employees can post comments. At first blush, it may seem prudent to install software to screen out obscene language. But if an employee then uses the site to make defamatory comments about a co-worker, the company may be held responsible as an editor. This same scenario could equally apply to media Web sites that allow members of the public to post comments online. The risk may be even greater for news aggregation sites such as the Drudge Report and Huffington Post that collect and republish links to stories and columns from other sources.

For true ISPs who merely provide the hardware and network connection for Web sites, there seems to be little risk of being caught up in defamation suits. But the minute someone exercises any form of control, there is a tendency for the courts to interpret that behaviour as editorial control.

It would be foolhardy to underestimate the power of online communications today — and in future. Individuals, institutions and companies alike continue to flock to the Internet because of the connection it offers to a potentially vast global audience. But the anonymity, immediacy, informality and pervasiveness of online communications make it an ideal breeding ground for defamatory statements.