Interesting Internet Defamation Lawsuit - Statute of Limitations Reset Online?

[Renegade]

This is really interesting... A lawsuit against a site that was taken offline in 2009 that had defamatory material on it... The statute of limitations is 2 years. Game over? Not quite...

http://www.thestar.com/news/canada/article/1285850--pro-life-crisis-pregnancy-centres-sue-pro-choice-activist-for-2009-report

The statute of limitations for defamation is two years, but the groups argue that period has not expired because the report was published online and continues to be accessible to anyone with an Internet connection.

“The limitation period is accordingly renewed every day that the report remains online,” says the Notice of Civil Claim filed with the Supreme Court of British Columbia on Oct. 25, which alternatively argues that the period is renewed every time someone finds and reads the report.

Don Crane, the lawyer representing Arthur, disagrees and plans to file a motion to dismiss the lawsuit on the grounds the limitation period has passed.

So... 

Does online accessibility reset the statute of limitations for defamation?

[TaoPhoenix]

Well fooey, if the only criterion is "on the Internet", then the statute of limitations will *never* expire because someone will make it a point to keep juicy stuff and "re-publish" it as a service to lawyers and others. 

[TaoPhoenix]

It's also not clear if people can randomly look up posts they never were upset about before, and suddenly throw a lawsuit hissy fit.

[40hz]

I think the plaintiffs are going for a really really long shot with that one in an attempt to extend existing law far beyond where it was ever intended to reach.

I'm guessing the judiciary will realize what they're up to and just say "Sorry folks. Nice try."

To do otherwise would open up anything ever published to potential defamation litigation.

[Tinman57]

I think the plaintiffs are going for a really really long shot with that one in an attempt to extend existing law far beyond where it was ever intended to reach.

I'm guessing the judiciary will realize what they're up to and just say "Sorry folks. Nice try."

To do otherwise would open up anything ever published to potential defamation litigation.

But you forgot to figure in the idiocracy (I know that's not a real word other than the movie) of our judicial system.....

[Renegade]

I'm not so sure.

There is a twist here.

On a web site, you continually publish whatever is on it until you pull it down. So, the site was still publishing the material until it closed.

So, is the publish date the first day it was published? Or is the publish date renewed every day you continue to publish it?

That seems reasonable. I'd say every day you continue to publish on your own site is a renewal of the last date for the purposes of a statute of limitations.

Now, for other sites continuing to publish it, I don't think that holds water. You can control other sites, and shouldn't be responsible for what they do.

[40hz]

The point of offense and liability has always been backdated to the original appearance of the statement in question. Continuous reiteration just because it's on the web is really pushing it to the point of total BS. I don't think the judiciary would be willing to legislate from the bench on something that over the top. I'm positive they'd wait for a law to specifically establish such an interpretation before they go along with that. Especially since to adopt it as a general rule would totally negate the notion of limitations under the law.

[app103]

Let's take the internet out of the discussion for a moment and go back to the world that existed when these laws were originally written.

Q: Is there anything that could compare to a website in longevity, where masses of people could easily access potentially defamatory statements long past the statute of limitations?
A: Yes, there is. If the statements appeared in print, like say a book, and that book were on a library shelf, or thousands of library shelves, it could be accessed by the public long after the SOL.

Q: Would being able to access it change the original publish date?
A: No, it would not.

Q: Would the presence of it on a library shelf extend the SOL?
A: No, it would not.

Q: Would each day that a library opened with the book still on the shelf constitute a republication, for each day that it remained accessible to the public?
A: No, it would not.

[Renegade]

There's a fundamental difference between a print book/newspaper/whatever, and a web site. And *THIS* is where the nuance is...

Publishing a physical book is pretty much a single event. You print it - it exists.

Publishing a web site is NOT a single event. It is a continuum of events that continues until you turn the site off, after which it is no longer in the state of "being published".

i.e.:

Physical books are discrete events.
Web sites are indiscrete events.

Treating them the same without a good reason is exactly the same fallacy that leads to Zeno's paradoxes. i.e. The imposition of discrete/indiscrete systems of logic in the wrong context.

So far, I haven't heard a reason why they should be treated the same.

Not saying I have any answers... But... the difference is there. Anyone have a reason to treat them the same other than "just because"?

[Renegade]

I *should* be washing dishes, but a bit clearer picture popped into my noggin... Imagine these:

Joe writes a scathing attack on Fred. It's defamatory and simply untrue. Joe publishes it on his blog, but sets the permissions on it so that it is not visible to the public at large. Joe then waits 2 years plus a day, and changes the permissions to make it publicly visible.

Is Joe immune to prosecution because the SOL has expired?

Now, let's do another...

Andrew is pissed at Joe, and wants to retaliate. (Andrew is a friend of Joe.) Andrew writes a scathing attack on Joe that is similarly defamatory and untrue. He goes into the database, and alters the data so that it appears that it was written 2 years ago plus a day. (Let's forget the technical issues about logs, etc. and just say that he does it perfectly so that forensically, it appears to have truly been written 2 years ago plus a day.) He publishes the article attacking Joe.

There is no evidence to prove that Andrew wrote the article today, and it appears to be beyond the SOL. i.e. It appears to be the exact same case as Joe's above.

Now. In light of that... are either Joe or Andrew beyond the SOL? Are they immune?

I don't think the online case is quite the same as the offline case. There seem to be fundamental differences at work.

Or, am I just a nutbar?

[app103]

So, if you are going to count each day that a defamatory statement appears on a blog as "republishing it" each and every day that it remains on the site, for the purposes of nullifying the idea of a SOL then you will also have to count each day as a separate incident, so that if a defamatory statement remains on a blog for a year, you have 365 individual counts of defamation, as if it were 365 different statements, one published each day?

[Renegade]

So, if you are going to count each day that a defamatory statement appears on a blog as "republishing it" each and every day that it remains on the site, for the purposes of nullifying the idea of a SOL then you will also have to count each day as a separate incident, so that if a defamatory statement remains on a blog for a year, you have 365 individual counts of defamation, as if it were 365 different statements, one published each day?

You're committing the exact same fallacy that I outlined above - confusing discrete and indiscrete systems.

No. They are not separate incidents - it is a continuum and not an isolated event.

To twist it another way (RAA - Reductio Ad Absurdum) - Choosing any unit of time can just as easily be chosen as half whatever you've chosen. So, why not half a day... and so on... and then why not by the yottasecond? (1 * 10^-24) Or, why not double the day to 2 days... and so on... oops - we've not completed an eternity, so the defamation cannot have happened as 1 unit of time hasn't even been accomplished. Either way - infinite charges, or never charged. (This is again the same fallacy I mentioned above.)

If you asked someone to turn a light on, and they rubbed their feet across the carpet, then touched you, there would be light. Would you call that having the lights on? Again - same relative issue about an event as a temporal continuum as opposed to an event as being temporally discrete.

[app103]

So, if you are going to count each day that a defamatory statement appears on a blog as "republishing it" each and every day that it remains on the site, for the purposes of nullifying the idea of a SOL then you will also have to count each day as a separate incident, so that if a defamatory statement remains on a blog for a year, you have 365 individual counts of defamation, as if it were 365 different statements, one published each day?

You're committing the exact same fallacy that I outlined above - confusing discrete and indiscrete systems.

No. They are not separate incidents - it is a continuum and not an isolated event.

To twist it another way (RAA - Reductio Ad Absurdum) - Choosing any unit of time can just as easily be chosen as half whatever you've chosen. So, why not half a day... and so on... and then why not by the yottasecond? (1 * 10^-24) Or, why not double the day to 2 days... and so on... oops - we've not completed an eternity, so the defamation cannot have happened as 1 unit of time hasn't even been accomplished. Either way - infinite charges, or never charged. (This is again the same fallacy I mentioned above.)

If you asked someone to turn a light on, and they rubbed their feet across the carpet, then touched you, there would be light. Would you call that having the lights on? Again - same relative issue about an event as a temporal continuum as opposed to an event as being temporally discrete.

And you'd feel comfortable trying to explain that to a jury of average people and feel confident that they would understand what you are saying?

[40hz]

@Ren - you can push anything to the point of absurdity. But playing that game just plays into the hands of the people who are trying to game the system. I'd rather insert a little reality and common sense (not as rare a commodity as the propaganda we're being fed would like us to accept as fact) into the equation.

The law only extends as far as we're willing to take it. It's not a mathematical proof where if A=B and B=C then A must = C. It's subject to interpretation, discretion, and human judgment. Pull that out of the loop and we're doomed.

Do  your part not to let that happen. Call a crock a crock whenever you hear one being pushed your way. It stops these people in their tracks when you don't concede their right to frame the debate and define the terms being used. Just say ""You know as well as I do that's complete bullshit." When they reply they don't see it as that at all, simply smile your most pitying smile and then say "Really? You don't?" Act flabbergasted and listen with amusement as the room chuckles while the idiot slinks away to look for somebody else to annoy.

[Renegade]

And you'd feel comfortable trying to explain that to a jury of average people and feel confident that they would understand what you are saying?

It's the same basic logic as those addition problems where you start factoring, then divide by zero in a hidden step, and magically end up with an absurd answer. Zeno's paradoxes are all well known illustrations of the problems you get when you juxtapose discrete and indiscrete systems. For explaining why... well, might take a bit longer.

The law only extends as far as we're willing to take it. It's not a mathematical proof where if A=B and B=C then A must = C. It's subject to interpretation, discretion, and human judgment. Pull that out of the loop and we're doomed.

But picking a date *IS* as simple as a mathematical proof. It's either Monday or it's not Monday, but it isn't both Monday and not Monday. Humanity has little to do with it. It's kind of like all these quack scientists and doctors out there that talk about "consensus", as if they can change the laws of physics by all agreeing on something. It's utter insanity. But, that's a total tangent.

Do  your part not to let that happen. Call a crock a crock whenever you hear one being pushed your way. I stops these people in their tracks when you don't concede their right to frame the debate and define the terms being used. Just say ""You know as well as I do that's complete bullshit." When they reply they don't see it as that at all, simply smile your most pitying smile and then say "Really? You don't?" Act flabbergasted and listen with amusement as the room chuckles while the idiot slinks away to look for somebody else to annoy.

I think I'm right about "publishing" online being a "state of being" rather than an "event" as it is in traditional print. (In the case of where one has control - otherwise, it is an event.)

I have no real opinion on how to choose the date there for the statute of limitations.

It's either the date that someone clicked "Submit/Post", or it's what I described above as a continuum.

The event scenario is much easier to deal with. The continuum scenario makes more sense though. e.g. You defame someone, get punished for it, but keep the defamatory materials up online. You've already been punished for it (as an event), so you can't be tried twice for it. This seems absurd.

Dunno. Just seemed like an interesting issue about having things online.

[40hz]

The continuum scenario makes more sense though. e.g. You defame someone, get punished for it, but keep the defamatory materials up online. You've already been punished for it (as an event), so you can't be tried twice for it. This seems absurd.

Sounds like you've just made the case for the web equivalent of book burning.

A successfully prosecuted libelous statement made in a book doesn't result in every copy of that book being rounded up and burned. Once the suit is settled that's the end of it. True existing unsold copies are usually recalled. And likely the new editions of the book need to add or remove some language. But the book itself, in its original form, still lives on and is available to anybody who takes the trouble to hunt down a copy. You can't be prosecuted again just because copies of your original book are still floating around.

But with no statute of limitations on web publishing, you can basically prosecute and prosecute and prosecute until all copies of the file are taken down. That will have a chilling effect on free speech, investigative reporting, and news writing. And a complete takedown is something that is becoming increasingly possible despite the assurances of the hacker/pirate/darknet crowd that the web can't be controlled. (Trust me, major governments haven't even begun to regulate the web. Within 25 years the Internet will be more restricted and monitored than the isolation cellblock in a 'supermax' prison. The dream of Jeremy Bentham's panopticon lives on in virtual space.) In such an environment, self-censorship becomes the only workable strategy for self-preservation. Especially in the face of no statutory limitations on anything that appears there.

Brave new world indeed!

[Carol Haynes]

Do cached pages count or does a scraper site count against the original author?

If caching counts then sure they company doing the caching is liable - Google anyone?

[Renegade]

The continuum scenario makes more sense though. e.g. You defame someone, get punished for it, but keep the defamatory materials up online. You've already been punished for it (as an event), so you can't be tried twice for it. This seems absurd.

Sounds like you've just made the case for the web equivalent of book burning.

A successfully prosecuted libelous statement made in a book doesn't result in every copy of that book being rounded up and burned. Once the suit is settled that's the end of it. True existing unsold copies are usually recalled. And likely the new editions of the book need to add or remove some language. But the book itself, in its original form, still lives on and is available to anybody who takes the trouble to hunt down a copy. You can't be prosecuted again just because copies of your original book are still floating around.

But with no statute of limitations on web publishing, you can basically prosecute and prosecute and prosecute until all copies of the file are taken down. That will have a chilling effect on free speech, investigative reporting, and news writing. And a complete takedown is something that is becoming increasingly possible despite the assurances of the hacker/pirate/darknet crowd that the web can't be controlled. (Trust me, major governments haven't even begun to regulate the web. Within 25 years the Internet will be more restricted and monitored than the isolation cellblock in a 'supermax' prison. The dream of Jeremy Bentham's panopticon lives on in virtual space.) In such an environment, self-censorship becomes the only workable strategy for self-preservation. Especially in the face of no statutory limitations on anything that appears there.

Brave new world indeed!

Good point. That makes it much more sensible to use the actual date that someone clicked "Post". You have me sold there.