It is interesting that the matter complained of in the case Geist is discussing involves defamation.

Internet cheerleader that I am, I cannot imagine the utility of a law that exempts internet publication from the law of defamation. There may well be arguments in favour of a "made for internet" copyright regime but attacking a person's reputation is reprehensible whether in print or pixels.

And, besides, how would serial liar Warren Kinsella fill his days?

Allow me to dream a bit more. The issue here is not whether an intermediary – whether online or offline should face no liability for the content on their systems. Of course there should be instances where they should and hosting child pornography, hate speech or defamatory content would all qualify. The more difficult question is determining what constitutes child pornography, hate speech or defamation. In the case of child pornography and hate speech, the law does not ask the publisher to serve as judge and jury to make that determination. Instead, liability will only accrue after a judge has made his or her views known through a court order. That oversight provides an appropriate balance.

The problem with defamation is that there is no oversight. If someone posts a comment on this site – say that I am not only a cyber-dreamer but also an academic fraud who plagiarizes his work – you might expect that I would contact you and advise you that I believe this is defamatory. Once you’ve been notified, you face potential liability should I pursue legal action. You may feel that is fair since this is your site and you’ve been put on notice. I don’t think this strikes a good balance because presumably you don’t know if the comment is true or not, yet you will likely remove it to avoid liability.

In my opinion, this creates a real chill such that a legislative change would be useful. The change would not grant you total immunity for anything on your site (if you write it, you still face liability). The change would mean that if you merely host the words of others, you would not be liable simply because I’ve put you on notice. Rather, liability would flow once you’ve received a court order to remove content and failed to do so. I think that strikes a far better balance to facilitate speech and provide appropriate protection for those who are the targets of defamation.

Thank you for writing, Michael. <p>I would think that the entire content of the web should be sufficient proof that there is no real likelihood of a chill - except where there has been communications which are already generally unacceptable in any medium like hate, porn or libel. The legal tests for when these wrongs arise do already exist and are medium neutral. No new order for the internet need be created. <p>And there is already a test for when the party is not active in the making of the communication, even if from the SCC, which is the non-participatory neutrality of the common carrier. Under such a test, considering a blogger to be among "those who provide internet infrastructure" is not tenable. We create space to reflect ourselves, a point of view or another substantive statement. Commenters reflect upon and reflect back upon that substance. So I fully expect that if I write in a post that Michael Geist is a <i>cyber-dreamer</i> (and, yes, you can print t-shirts with that on it) but others compound the gentle rudeness into greater and greater allegations and finger-pointery then I am required to control that and edit out the extreme vulgarity as sooner or later a cause of action might arise. <p>The difficulty is really only one of understanding the effect of scale. How does a system of communication (like an Amazon or Ebay) that is beyond control of the owner through the complexity of participation, structure and substance deal with it? I would reverse the issue. Why is it that scale in itself becomes an excuse for culpability? Is that not analogous to the issue of corporate criminality, the defence that the heads of the corporation were not really the actors so that a Westray mine or an Enron is not somehow a real crime? You sort of see the same thing with enforcement of martial law. Ought not the system include a mechanism of accountability for legal wrongdoing even when the system is digital? I do not think scale excuses liability for improper interactions as have been defined as such on the human-to-human scale for centuries. <p>If I have shown myself to be worth an "F" in the above, I invite the good professor to grade accordingly.

I’ll pass on offering a grade but instead offer a further comment. I think you misunderstand who is being protected through a safe harbour for intermediaries. The issue has nothing to do with scale. It is about speech. I would argue that the real beneficiaries are not the Amazons or Googles since under the current rules, sites big or small will remove the content based only on an allegation of defamation. The reason for the safe harbour is that the real beneficiaries are the speakers/posters, whose postings need not come down based solely on an unproven allegation.

You indicate that as postings get increasingly vulgar, you may be required to edit them. Perhaps we’re talking about different things. I’m not worried about vulgarity. I’m concerned that legitimate postings are easily suppressed through a simple claim. While there is lots of speech online, my experience suggests that it is too easy to get content taken offline with nothing more than a claim of defamation. That is not to say that truly defamatory stuff shouldn’t be taken down – it should. However, it should be up to a judge to reach that determination, not a website host who has no realistic alternative but to remove such content.

Finally, it is important to understand that this is an Internet issue. Why? Because before the advent of the Internet, those speakers/posters had no readily available platform for their speech. They do now – and if we want to encourage that public discourse we need to ensure that their postings can survive an unproven claim that they are causing harm.

I think I would need to know more about actual examples of free speech that was not defamatory being forced off the internet successfully as I simply do not see that as a harm being foisted on anyone. How many claims of defamation have actually been brought and how does this compare to other forms of chill in our society? There are many instances outside of the web where news is not published or speech is not made through coercive pressures. The social and polticial life of Prince Edward Island, for example, is riddled with this - where the news media will not run stories and people accept practices of discrimination related to political belief. I am particularly familiar with that situation through the career path of my legal practice but I am sure it is the same in many small communities. That example of PEI is not particularly good and no measure of what ought to be acceptable as a free speaking society but has not the Internet increased relative openness on a net basis compared to that?

My point here would be (and this is why I take you to be futuristic in your approach) is that the Internet is a place of far greater openness where it is used and when speech is made through it. So I do not see the sort of large scale censorship and chill through legal processes that you do. I also do not accept the idea that the Internet has <i>changed</i> the nature of freedom of speech in any way or that previously "those speakers/posters had no readily available platform for their speech". It is only that the universality of the internet has made the exercise of freedom of speech public to a unified body and that it is cached. Prior to the internet there were 'zines, meetings, letters, discussions. That they were not univerally archived (the real achievement of the web) is irrelevant to the exercise of the freedom of speech without interference. They made be subject to chill as in the PEI example but that is a tension in the community, balancing interests and values. In fact, I would suggest that the Internet creates its own haves and have nots related to speech, with its own balance of values between the heard and those with no access or interest. My speech, for example, is given far more weight than it likely deserves because I babble here on a daly basis. Other than for the one killer app of email the web and speech remains a hobbyists venue - which is confirmed in my mind by the example of the practice of noting how many blogs there are in the world but never subtracting how many go dead within a week. It is in fact a relatively small community compared to the possibility but for the most part people simply do not care for the medium compared to the traditional non-digital ones. And in saying this I am only speaking of the western world. Globally, as a medium of private free speech it is not very active at all <i>compared to what it might be</i> or rather what it claims to be.

So I would have to be convinced that there is actually a huge body of claims chilling discussion as opposed to the pre-existing and generally accepted civilized risk management within a balanced community where those who are thinking of saying unacceptable things see that the medium does not give licence that would never be acceptable to the community in any other medium. Is there a case to be made for that or is it just an example of "new thinking" where there is an e-economy, e-law and e-community - all of which end up something of a sham when placed under a magnifying glass of no particular strength. And if there is a case to be made, how does it reflect back on non-internet based speech - will the rules for speech be universally applicable, providing practical guidance for use in other media or even face to face interaction? There is no point in having one rule for digital communication that does not mirror the laws of slander, for example, as I will only end up typing what I can't say to your face. That would only create media specific chills.

[PS: and why "safe harbour" or rather "harbor" as that was the name of the US's half-hearted attempt to provide pretend they were complying with personal information laws through dishwater voluntary corporate standards?]

The hobbyist described.