Canadian Court Reverses Net Publication Ruling

An anonymous reader writes "A Canadian appellate court has reversed an earlier ruling that had media companies worldwide fearing an Internet publication chill. A lower court had asserted jurisdiction over the Washington Post based solely on an article published years earlier that was available on the Post's website. That decision attracted the attention of companies such as Reuters and Yahoo!, who appealed what was viewed as a dangerous Internet jurisdiction case."

Jurisdiction

[HugePedlar]

You have to wonder whether local laws can in any way be applied to the Internet.

What if I, in England, publish something that breaks a law in Germany where my webhost resides? Who gets prosecuted, if at all?

Re:Jurisdiction

[Guy_Warwick]

complex question - no simple answer - It depends on the offense / the jurisdiction of the parties etc etc - some legislation EU "hate crimes" have wider nets - the worrying trend is to limit speech and to recognise national laws as having Universal jurisdiction - this is a matter widely dealt with in many articles on the net.

Re:Jurisdiction - not even that complex

[Nom du Keyboard]

What if I, in England, publish something that breaks a law in Germany where my webhost resides?

Not even if your webhost is there. I think just the fact that someone in Germany can access your article was the problem here.

Re:Jurisdiction - not even that complex

[Dashing Leech]

"I think just the fact that someone in Germany can access your article was the problem here."

I think it was even a lot more complicated than that. In this case, the Washington Post slandered a person. That it was slander was not in question, and slander is illegal in both Washington and Ontario. The problem is slander is a law of circumstances, in which reputation is harmed. The person in question was not harmed in Washington has he had no reputation there, not having any friends, family, or colleague

Re:Jurisdiction - not even that complex

[Nom du Keyboard]

I think it was even a lot more complicated than that.

That's an excellent analysis that deserves an INSIGHTFUL mod that you probably won't get since this article is off the first page.

However I must also point out that when the article was written and published, he wasn't libeled (slander is spoken, libel is printed) harmed in Ontario either, since he had never lived there and did not move there for another 3 years.

One thing about electronic media is that it can be edited -- or even recalled completel

Re:Jurisdiction

[g2devi]

Just ask Dmitry Sklyarov. He did something in Russia that was perfectly legal in Russia, but got arrested when he visited the U.S. because it was claimed he broke the U.S. DMCA.

If you do something that is illegal in another jurisdiction, then it's a really good idea to stay out of that other jurisdiction. If you're in a jurisdiction that has an extradition agreement the that other jurisdiction, you may be SOL.

Re:Jurisdiction

[tomhudson]

Just remember to keep a lookout for black helicopters and you should be all right.

Remember, the US is not below "moving people" to more cooperative jurisdictions.

Besides, this is Canada we're talking about. Who gives a fuck anyway ...

.

.

(Lets face it, as a Canadian, I knew there was no way this ruling could stand on appeal. We're a bit more reasonable yadda yadda yadda. That Yahoo! and Reuters were worried makes me wonder if maybe medicating the water supply or banning so-called "energy drinks" mi

Scary but true

[bezuwork's friend]

Remember, the US is not below "moving people" to more cooperative jurisdictions.

What he said is true. It remains beyond me that courts have said "yes, the kidnapping of the defendant was illegal" and yet, because the defendant is in court, the court can proceed because physical presence gives them jurisdiction. At least, this is how it works in the US when foreigners are involved. US Citizens have protections.

Linky goodness [findlaw.com].

Re:Scary but true

[tomhudson]

Seems to me that if physical presence gives them jurisdiction, that

1. it should also give them jurisdiction over the crime of committing a kidnapping;
2. since parties to a crime are not allowed to profit from it, that prosecutors, judges, etc where the defendent has been kidnapped should be barred from collecting a salary for the jurisdiction of the trial and any appeals;
3. since the prosecution has committed crimes in the case, their credibility and that of their witnesses should never be assumed - in other wor

Re:Scary but true

[rtb61]

If you check the law in the US you will find that US law enforcement officals are specifically allowed to break the law in other countries (even if that activity is illegal in the United States) and they don't have any treaties with any country excluding that kind of behaviour. Of course if they get caught by the local law enforcement the ramifications will depend on the publicity that the event receives. Nuclear first strike - eliminating bad foreign press.

Re:Scary but true

[tomhudson]

If US agents get caught kidnapping someone on foreign soil, don't be surprised if its considered an act of war, and they end up being treated as spies (since they obviously would be out of uniform).

Officially-sanction breaches of another country's sovereignty have often been considered as acts of war. Having a domestic law that "authorizes" it only means that they can't be extradited if they manage to pull it off.

Look at the dustup between France and New Zealand http://archive.greenpeace.org/comms/rw/pk [greenpeace.org]

Re:Jurisdiction

[badfish99]

It is usually a requirement of extradition that the offence be illegal in the country being extradited from, as well as the country being extradited to. Otherwise, everyone would get sent to Saudi Arabia for flogging every time they took a drink.

The tendency of powerful countries like the US to believe that their law should apply everywhere is more troubling. This not only leads to cases like Sklyarov's, but also to pressure on other countries to make them change their own laws to fall into line: the various European versions of the DMCA come to mind here.
The logical end of this process would be for all laws to be the same everywhere (and to be the worst common denominator of all the current laws). The present diversity of laws between different countries is an important source of our current freedoms.

Jurisdiction vs. bad laws

[Dire Bonobo]

> Just ask Dmitry Sklyarov. He did something in Russia that was
> perfectly legal in Russia, but got arrested when he visited the U.S.
> because it was claimed he broke the U.S. DMCA.

By offering ebook-cracking software for sale to Americans in America, he was breaking American law[1]. That someone who was breaking American law was arrested when he came to America is not entirely surprising.

Now, I'll grant you that it's not a good law, but at the time of his arrest, selling this kind of circumvention software was a crime in the US, and offering it for sale to Americans inside America---regardless of whether that selling was over the web or not---meant that he was breaking an American law.

Sklyarov's case isn't about over-reaching jurisdiction---he was arrested in the US for breaking a US law in the US---it's about bad laws [freesklyarov.org]. Muddying the waters by confusing the two just helps divert attention away from (possible or real) problems due to each of these (different) phenomena.

[1] It's questionable whether Dmitry was actually in violation of any US laws, since it is claimed [eff.org] that he had nothing to do with the distribution of the program inside the US. Nevertheless, that is what he was arrested for and charged with [eff.org], so he was indeed arrested for and charged with committing a crime (distribution of circumvention software) against US law in the US (Washington State-based server, US clients). That he may well have been innocent of those charges does not make them "overreaching their jurisdiction" any more than any other innocent man in the US being charged with a crime involves overreaching jurisdiction.

Re:Jurisdiction vs. bad laws

[Anonymous Coward]

By offering ebook-cracking software for sale to Americans in America, he was breaking American law[1]. That someone who was breaking American law was arrested when he came to America is not entirely surprising.

Sklyarov didn't offer ebook cracking software to Americans. Elscomsoft did.
Sklyarov doesn't own Elcomsoft, he was an employee of Elcomsoft.
Elcomsoft fell foul of the bad laws as you put it.
Sklyarov was arrested in America for breaking American laws (the DMCA) in Russia. Not for making said software ad

You are mistaken

[Dire Bonobo]

> Sklyarov was arrested in America for breaking American laws (the DMCA)
> in Russia. Not for making said software advailble to Americans because he
> was not the distributor of the software.

You clearly did not so much as glance at the links I provided:

"Dmitry Sklyarov and ElcomSoft face five criminal charges in the indictment: four counts of circumvention offenses, and aiding and abetting circumvention offenses, under section 1201 of the DMCA, and one charge of conspiracy.

The first count i

Re:Jurisdiction

[gunkmail]

Ask Marc Emery from Vancouver, BC. He is being held( at least in Canada for now) on an extradiction notice from the USA. Pretty much from what i can tell about international law is that: 1. If the it is illegal in the USA it is illegal everywhere. 2. If it is not illegal in the USA you may still be arrested if the right money pushes the right buttons 3. If it does not affect the USA then no matter how horrific the crime it is not really a problem unless oil is involved. Then we will just make that proble

Re:Jurisdiction

[SnowZero]

In general countries do not look kindly on people in the illegal drug import/export business (in Marc's case, he sold pot seeds to the US from Canada). If you want to be an activist, you should generally do it in your own country, as things get far too murky otherwise. Tell me, how does Canada look at those who import cocaine from South America? Maybe they are just "activists supporting freedom" too?

Even someone importing/exporting only alchohol without doing the proper paperwork would get into legal tro

Re:Jurisdiction

[udowish]

"If the it is illegal in the USA it is illegal everywhere."

Bullshit

Re:Jurisdiction

[jasonditz]

What he said was an exaggeration, but not much of one. The US does, at least to some extent, make the rules for everywhere... a government unwilling to obey those rules is likely to find itself on the receiving end of a bloodless coup or a color-coded revolution.

Re:Jurisdiction

[udowish]

I would love to see them try that with "non third world" nations. I think they would find the fight would be more they can handle. IE UK or any other western European nation, Canada, Australia etc etc It just so happens the the US are allies with the majority of the above but please do not be so aragant as the think the US has that much influence, they might want to beleive they do but I highly doubt it if push comes to shove.

Re:Jurisdiction

[jasonditz]

Just keep telling yourself that when American customs agents are searching your luggage at a Canadian airport.

Re:Jurisdiction

[udowish]

likewize, there are four locations where Canadian customs officials search luggage at US airports, its part of a reciprical agreement intending to speed up imm etc for both sides. I see no issues with that.

Re:Jurisdiction

[Sigma 7]

Ask Marc Emery from Vancouver, BC. He is being held( at least in Canada for now) on an extradiction notice from the USA.

Canada only decriminalized possession of Marijuana. It's still a restricted product as there are still fines for possession (for those who do not have a permit). In addition, there's still laws against trafficing that are being enforced against some organizations (e.g. those who give pot out to anyone, while falsly claiming those people had a legit permit or whatever.)

As another poste

Re:Jurisdiction

[udowish]

Canada has NOT decriminalized possession of Marijuana. It is still illegal and the only people who can possess it are those who are using it for Medical Use and that is less than 1000 people nationally.

Re:Article Text -- Let's Hope

[Nom du Keyboard]

To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation.

Let's hope the rest of the countries of this world are equally smart about this!

The lesson:

[Teun]

Just ignore them lower courts!

But a valuable decision/correction non the less.

Re:Fire the Judge

[Anonymous Coward]

That's right, put him in the White House!

Re:Fire the Judge

[$RANDOMLUSER]

Overqualified.

Re:Fire the Judge

[Anonymous Coward]

I'd rather have judges making bad decisions that can be fixed on appeal than the government having the power to arbitrarily remove judges they disagree with.

Hmm...

[Anonymous Coward]

I have no idea if Canada follows the process we do, but here in the US, we have judicial recall votes.

Basically, in this hideously long section on each ballot, we can vote against whichever judges we feel like, and if they get enough recall votes, they get the boot.

Granted, 99% of the public seems to ignore this section or vote yes to all or to just vote randomly, but if you organize enough, and if Canada has a similar process, you can always work to recall the guy.

Even if you don't get a recall vote throug

Re:Fire the Judge

[Frank T. Lofaro Jr.]

Why was this moderated flamebait?

The judge, if he hadn't been overturned, would have set a precedent that would be extremely destructive to what is left of free speech on the net.

Should anything on the web be required to be legal anywhere it can be accessed?

Should every website on the whole Internet have to be legal in China, Iran, Singapore, the US, France, Germany and every other country that wants to restrict certain types of speech?

No more Falun Gong sites, mentions of Tiannamen Square massacres or pro-

Re:Canada has courts?

[tomhudson]

Yep, we've got courts.

Every spring, when our igloos melt, we gather to decide who should be banished. Those too old, and the infirm, and anyone with extreme radical opinions, is put on one of the melting ice floes and cast adrift.

Its far more humaine than jail, or letting them die of their illnesses, since we don't have much in the way of medical care. Our socialized medicine consists of the local shaman or priest (we're okay with either) offering prayers and sacrifices.

This is one reason why Canadians

What's the best country

[putko]

On the same topic, what's the best country for hosting stuff that pisses off Western companies?

E.g. suppose I have a news site that deeplinks to the NYTimes. I suspect if I host in the USA or Canada, they can get at me and perhaps shut me down with summary judgement.

But what's a country where that would be cool, and they'd tell the USA and Canada to go jump in a lake?

I know France is bad -- Google got in trouble for their searches (e.g. Company Z, a competitor of "Company A" could buy the search term "Comp

Only North Korean ISPs offer this service

[davidwr]

*joke*

Seriously, if you don't hold US citizenship and don't mind being banned from the good ol' USA, try anti-American countries like Cuba and countries that couldn't give a rats ass what Washington thinks, like China or sometimes France. Obviously not France for certain trademark-violating or pro-Nazi sites of course. On the other hand I hear Germany and a few other European countries are great places to post anti-Church-of-Scientology stuff that's (c) by them in the USA.

Actually, what you want is a coun

yeah, case-by-case is probably best

[Trepidity]

CoS stuff is good in Germany because Germany banned the CoS as a "dangerous cult", so they don't get any legal protections there. But in general Germany's laws aren't that friendly, and there is basically no fair-use provision.

Barring any country with a specific advantage for your specific content, I'd say the U.S. is probably the best, despite its numerous drawbacks. The First Amendment provides a very strong presumption in favor of people publishing content. This means you don't have to worry about all

Re:What's the best country

[Arker]

fucking dumbass american trash, wait... isn't that hate speech? Then again, since you like it, might as well give it a try... USA prick

I may not agree with what you're saying, but I'll still defend your right to say it.

Re:What's the best country

[Anonymous Coward]

Hate speech is a form of terrorism.

Most civilized countried forbid terroristic groups or encouraging terroristic activities.

Groups or individuals expousing racially devisive views and hatred of various minority groups should rightfully be banned.

Re:What's the best country

[NeedleSurfer]

Bottom line is, I agree hate speech laws can be easilly abused but well managed they actually encourage free speech, respectfull free speech. Hate speech laws basically say: say what you want but don't incite to illegal action towards members of some group, wheter ethnic, religious, social, whatever, nothing more nothing less, therefore saying:

Jews control the economy is a stupid saying but even in countries where hate speech laws exist it is legal to say it.

We should burn jews however has nothing to do wit

Re:What's the best country

[ulairix]

http://www.sealandgov.com// [sealandgov.com]

Re:What's the best country

[slavemowgli]

The Netherlands. The Scandinavian Countries. HavenCo.

Sweeden or Sealand

[_KiTA_]

IIRC, ThePirateBay, probably the biggest Bittorrent "dark grey" tracker network, is hosted in Sweeden, and, well, they openly mock US companies that send them threatening letters.

http://thepiratebay.org/legal.php [thepiratebay.org]

Also, IIRC, Sealand, which is a floating fortress that was abandoned in international waters, apparently has a hosting company. They make it a point to host things that might be illegal in other countries (the exception being child pornogrpahy and spam).

http://thewhir.com/marketwatch/sealand.cfm [thewhir.com]
http://geography.about.com/library/weekly/aa081100 a.htm [about.com]

Re:Sweeden or Sealand

[kalidasa]

I believe that Sealand is an artificial island, not a vessel. Also, I would suggest linking directly to their site, though I'd warn readers that it is a bit subjective [sealandgov.com].

Re:Sweeden or Sealand

[pipingguy]

Sealand [wikipedia.org] is not a "floating fortress", it was an anti-aircraft platform during WW2. I'm not sure if it is floating [wikipedia.org] and it certainly isn't a fortress.

Re:Sweeden or Sealand

[Dun Malg]

From answers.com:

In 1942 during World War II, HMS Fort Rough was constructed in England as one of the Maunsell Sea Forts. It comprised a floating barge with a superstructure of two towers joined by a deck upon which other structures could be added. The barge was towed to a position above Rough Sands sandbar where its hold was intentionally flooded so that the hulk sank to a resting place on the sandbar. The structure now visible above the waterline is the superstructure of the vessel.

So yeah, definitely n

Re:Sweeden or Sealand

[WWWWolf]

Also, IIRC, Sealand, which is a floating fortress that was abandoned in international waters, apparently has a hosting company. They make it a point to host things that might be illegal in other countries (the exception being child pornogrpahy and spam).

Except that after people started flicking "terrorist" cards to the table, they changed the policy to exclude anything that's against "commonly accepted international good practices" or some other vague crud like that. We've got a loooooong way to go to K

Reverse a Ruling...

[Mastadex]

Now why doesnt the US government take a lesson from its northern neighbors and reverse a few rulings....

*achem* Patriot Act *cough*

In Australia ...

[Anonymous Coward]

This remains the case. For the purposes of defamation, the relevant jurisdiction is that where the material was published in the legal sense of the word, meaning 'where it was communicated to a person other than the plaintiff'. The location where a matter is read or heard is the location at which that matter will be considered to have been 'published'

Thus it was held by the High Court (Gutnick v Dow Jones) that an American company (Dow Jones) publishing defamatory imputations about an Australian citizen,

Re:In Australia ...

[indaba]

actually, I just thought the decision in Gutnick did make perfect sense.

I've also explained the Gutnick decision to several non-legal friends, and they all thought that it was reasonable to hold someone to account for damage caused in Australia, regardless of the physical origin of the damage.

pity I don't have any mod points today, to mod up your post. I was going to mention Gutnick - but u beat me to it !

Get the whole case here :
http://www.austlii.edu.au/au/cases/cth/HCA/2002/5 6 .html [austlii.edu.au]