The Interocitor

Maybe it has to do with NY Times being sold in Canada as well? Although I suppose they could just remove it from the international edition (if thats the one the canadians get)

I should note given their previous actions, however, that it is odd.

I'm not sure if you're serious. The Times is a Leftist organization. So is the Canadian gov. Censorship has nothing to do with anything regarding principal. Ideology and the end result is the bottom line.

"Why the silence?"

Economics? Perhaps they were worried about what I suggested here and here would happen. If the NY Times had broken the ban, Justice Gomery could have issued orders to have existing copies confiscated and destroyed, and all further shipments stopped at the border. Seems crazy, but it may be that possibility that kept the NY Times from being any more explicit.

steve--
D'oh! But the question still needs to be asked, at least to hear their excuse.

Travis, angry--
I don't buy it. They probably have different editions in Canada anyway, given the "Canadian content" rules for publications. Different ads, etc. And why not even on the website?

Bill Quick (see trackback) has a better explanation: the Times feared costs to Canadian assets. His further observation is a bit chilling tho...and probably also correct.

Maybe it's time to tell "Pinch" Sulzberger that it's time for him to get the hell out of New York for good. The "Gray Lady" has degraded to the "Ole Grey Hag", and more recently to the "Ole Gray Whore"! It's time to ressurect this once fine newspaper to what it once was, but without a pinch of the mentally unbalanced Sulzbergers!

Thought these journo's were such tough bastards that no court could break 'em, even under threat of Contempt of Court.

Justice Gomery does not have the authority to make an order to seize and destroy all copies of the NYT. Although he is a judge of the Ontario Supreme Court, he is sitting as a commissioner under the Inquiries Act. His powers include subpoena, citation for contempt etc., but nothing like seizure and destruction of this magnitude. On the other hand, as a Canadian, I find it hard to believe that the NYT would identify enough with our corrupt center-left liberal party to abandon a good story (we are foreigners of a sort, after all). I suspect that their reluctance to publish was a combination of a story that would not likely sell many papers to readers of MSM with an order from a judge (foreign or otherwise) that might complicate matters. I'm sure Michael Jackson was safer and would sell more papers.

Kevin,

Just a quick note:

I'm Canadian and, as far as I can tell, the "Canadian content" rule don't really apply to international newspapers. I can get copies of almost all major US newspapers (or French, or British or whatever), and they come as is. Maybe some or those papers have an international edition and that's what we get, but there is no way the NYT or the WSJ or the UK Guardian are going to come up with Canadian-specific stuff every day, just for Canada.

I think that rule only applies to magazines like Time that have a "Canadian edition" printed and/or edited in Canada.

I really don't want this to sound offensive, and I don't mean it in any such way. But I think the NYTimes ignored it precisely because the subject was Canadian politics. Anything that happens in Canada is so far under the radar for the enlightened editors at the Times that for it to get reported would first have to rise to the level of international incident, or be news at how some lefitst policy initiative that American conservatives would dislike is being implemented there.

Other than that, Canada is not important to the NYTimes and the rest of the MSM.

The only reason American media noticed the story is because the story finally became about journalists. To American journalists, this is first and foremost a story about journalism, not Canada. And there is no news story like one about journalists to get journalists to report on it. Vanity squared.

But this is just my humble opinion.

I think the real reason was summed up by a blogger, "swims with naked ladies" or something, who said: "What happens in Canada, stays in Canada"

For godness' sake. What is so complicated about this. A Canadian judge in Canada issued a legitimate court order prohibiting the disclosure of certain info in Canada for a certain time. And an American idiot sitting at home, on the internet published the material....in Canada. Idiot. Capt Ed is no martyr. he is trying to call it a free speech issue but he misses the point entirely. It is Canadian and Ed marched electronically into Canada and broke that law. He never once thought he even had to respect Canadian law in Canada. He is the sort of idiot who would dump all over Australian law. Heck, god forbid an Iraqi judge some day makes a perfectly legal order affecting Iraq - I imagine ed would shit all over that law too. The man is an ass. And the NYT in this case has chosen to respect Canadian law - after all they understand that they are in the international publishing business, not just in the US. Goodness, some of the commentary on this topic has been appalling. If you are a Canadian and you think your contempt of court laws are awful and should be changed, more power to you. It's your law. I am Australian and I don't want Ed or anyone like him shitting on my law.

WB - I am a Canadian and I say you should STFU on matters of which you obviously know little. Capt Ed was acting in the best tradition of freedom of speech advocates throughout history. Moreover he circumvented Canadian Law by NOT BEING IN CANADA, but certainly did not break it, since he's not in Canada and the Ontario court's does not run in Minn. Finally, one could argue that Gomery's order was unconstitutional under the Charter, though it seems that Canadian journalists are too gutless to challenge it.

Um...no. He didn't "march electronically" anywhere. He's an American citizen in America and has the right to post about whatever he so desires in that vein. Canadian laws have no impact. Furthermore, his point--the real point--is that it's chilling exactly how much control the Canadian government has over speech, something that wouldn't be tolerated for a second in the States. Why do Canadians tolerate it?

And an American idiot sitting at home, on the internet published the material....in Canada.

No you dip. He published it... in Minnesota... on the Internet.

Law, law, law. You know how many horrible events in the world were justified because they were legal? But that's OKAY to WB.

You know that the Sudan Arab government is using a legal clause to disown Darfurians of their land? The Sudanese law says that if someone does not occupy their land for so many years they lose ownership of it. No matter the Arab militias chased the Darfurians off the land into refugee camps. It's THE LAW! WB thinks it's none of the world's business!

The NY Times -- like all large news organizations -- cannot risk losing access to foreign news stories. Remember how CNN was licking Saddam's boots so it could stay in Iraq? If the NY Times unilaterally breaks the Canadian reporting ban, it may not only lose access to Canadian news stories, but be seen as "untrustworthy" by other foreign governments as well. It's totally perverse; the more corrupt a foreign government is, the more the MSM must be willing to cooperate with it to maintain "access."

WB, I am Australian too, and I wonder by what arrogance you think Australian or Canadian law over-rides free speech in other countries?

Vincent--

Could be. I remember, way back when, Canada wouldn't let TIME or Newsweek sell their US edition in Canada for lack of Canadian content. I think they imposed a page-count rule. That's why there IS a Canadian edition now. Whether it applies to newspapers I don't know.

To those that say the NY Times just doesn't care about major Canadian scandals, well, they have no problem writing about Mexican dust-ups.

Unfreakin believeable. You are all on the freakin internet but you have not got a clue how it works. Ed published in Canada. Where his stuff was read in contravention of a perfectly legal court order. In Oz too, that's how I found out. He is in his house in the States and can practice all the free speech he likes there. But when he is on line he is publishing internationally, and he needs to observe laws where he publishes This is not controversial. This has been the case for internaitonal publishing since it began with the printing press. You howlers are dumb as boxes of hair. Squealing about Syria. How bout something more realistic - if Ed came into oz and drove on the wrong side of the road - cos he thought it was right cos that is how things are back home in the states, would he have a point about shitting on Oz law? No he would not. This is not a free speech issue although STFU in the comment above is a beautiful bit of hypocrisy. And ChrisPer, you're from Oz and you think an American speeching his idiot tappy fingers off in Canada is an American free speech issue. it is not. Ed could have not published in canada and he would have been fine. But he did publish in Canada. I hope other Canadians grow some balls and protect their law from their arrogant neighbours.
I don't need no Yank thinking he owns the freakin' internet telling me whether my country's law is worth observing or not. I maintain - Ed would shit on Iraqi law, Oz law, English law any law out of sheer ignorance and ego. It is law and it does matter.
And Canada is not Syria so get your hand off it whoever brought that up. Sheesh.

So, WB, if anything in your post above is actionable in, say, Saudi Arabia, you'd pay the judgement?

I'm pretty sure that criticism of Kim Jong Il is illegal in North Korea. Yet I think he stinks, and have just said so. But you are saying that I'm wrong for doing so.

What rubbish.

The law where you are AT is all that matters. If you don't like what is posted on American sites, well, don't click on them. No Canadian was forced, tricked or otherwise coerced into reading CQ's posts. They CHOSE to because they thought their government was covering up a major scandal.

IMHO, a country that gets upset about their citizens reading forbidden news is beneath contempt. I don't care what the reason given is.

WB, give an answer... do you think Paul Martin's Cabinet has been on the right course?

Probably a combination of the fact that there was potential risk due to violating the publication ban, AND the educated guess that Americans didn't care enough to justify thumbing their nose at Canadian courts.

I mean, they haven't been reporting on this situation at all, right? It's not like the testimony was a sudden blackout of NYT Adscam coverage, unless I'm mistaken. If that's the case, it's kind of silly to say they're censoring themselves.

Also, WB, you're either a troll or "as dumb as a box of hair." Ed didn't publish his work in Canada. His work was written and hosted in the US. If he did publish in Canada, you'd have a point. Where are you getting the idea that he published in Canada?

And are you seriously suggesting, as Kevin Murphy asked, that every individual in the world who writes on the Internet should be subject to any publication law a two-bit third-world dictator chooses to make? What, in the sense of international law, is the difference between a Canadian law and another from Saudi Arabia?

Hey WB,

F**k the law.

I don't give a s**t about what the law is in Canada, Australia, Burkina Faso or any other country but my own. And precious little of that, too, as I think lawyers and judges and politicians are mostly lice.

I'm a free American, and I'll say and do as I damn well please, and if you don't like it you can go get stuffed. How d'ya like them apples mate?

Random thoughts - what would the US reaction be if a Canadian (or Ozian) blogger published Grand Jury testimony, which jeopardized the successful prosecution of a criminal act? Paranoid reason for NYT lack of interest - Adscam leads to Liberal Govt corruption leads to Oil-for-Food scandal which further impunes the UN, the only govt NYT respects. My personal favorite is the Occam's Razor reason stated above - NYT doesn't care what happens in Canada. Last thought - has anyone asked the NYT what their position was prior to this article?

"I'm a free American, and I'll say and do as I damn well please, and if you don't like it you can go get stuffed."

Heh. I know. I know. Some would say the above statement reflects the quintessential ugly American but I say 'damned straight'.

If someone doesn't like our free speech in America, then go get your own. And if you need help in obtaining it we've got a willing Pres who will help you. But be quick, you've got 3 1/2 years. :)

As for the Times, I figure they didn't want to be bothered. If this scandal hurt the conservatives then they might deign to consider their options. Otherwise, all they did was shrug.

You are all on the freakin internet but you have not got a clue how it works. Ed published in Canada.

Viewing does not equal publishing. Ed's blog site is most probably hosted in the US, therefore he has broken no US laws and has certainly not published in Canada.

For all your rancor and childishness, you have yet to post a coherent argument.

But as an aside, there is something slightly troubling about blatantly skirting another countries laws. These are ultimately value judgements. While this particular breach may in the end be deemed valuable, who to say that these gag laws aren't legitimate for Canadians?( probably not in this case though, judging by the number of hits Ed's been getting. )

After reading WB's comments I decided to send him/her an email to express my opinion of the comments posted here yet interestingly the email address given by WB is not valid- which reflects the nature of the comments posted by this idiot.

steveb-
"what would the US reaction be if a Canadian (or Ozian) blogger published Grand Jury testimony, which jeopardized the successful prosecution of a criminal act"?

It's a question that has been raised before. The answer is that grand jury testimony is *completely* secret. No one goes in, nothing comes out.
By contrast, anyone who wishes to do so- public, press, politicians- can attend and listen to this testimony in Canada. Reports are going to all of the politicians involved. The "only" people who were not allowed access to the news were the voters who didn't live close enough to attend in person, or who didn't have sufficient political access to get a report delivered to them.
There is another issue: to what degree does "an untainted jury pool" trump the right to an informed electorate? To give an example closer to (my) home: had all of the details surrounding Watergate become known in the fall of 1972, should they have been supressed before and during the election? Or should voters be able to take into consideration what appears to be crass disrespect for the law and contempt for the public?

Canadian law allows a judge to confiscate any newspaper that violates a publication ban.

The Times had good reason to believe that their international edition would have been confiscated if they violated the ban .

During the referendum on the Meech Lake Accord, a high level Quebec civil servant had a telephone conversation with another civil servant in which she said that her boss,Quebec Premier Bourassa, had sold out Quebec by signing the Accord.The conversation was intercepted by someone using a scanner.

A Quebec judge,citing the way in which the conversation was captured, banned its publication in Quebec. This did not keep papers in the rest of Canada from publishing it. They were,however, obliged to sell a seperate Quebec edition of their paper or not sell the paper in Quebec on pain of confiscation.

One wonders why the Times did not follow the example of its Canadian colleagues during "the Wilhelmy affair" by reporting on Brault's testimony before the Gomery Commision and simply not selling their international edition in Canada.

Would they have not published a story about China for fear that the Chinese government would confiscate the Times?

Canadian publication bans do not extend to the United States.The American paper that respects them may save a few dollars by not having their international edition confiscated by Canadian authorities. It will,however, loose the esteem of those us in Canada who believe in freedom of speech.

Steve Albert

Montreal

Syria? Syria? Who is talking about Syria?

Speaking of tyrannical nations though, should Richard Gere be sent to China for violating Chinese law on speaking about independence for Tibet? He published an essay on OpinionJournal.com about it. Should all of Tiawan be arrested China for rallying for sovereignty? You know how many people have published about that on the Internet?

It sure must stink where you head is right now... No wonder you're not thinking straight.

I think the basic point is missed. If the question is, why did the New York Times only deal with the free speech issue and not the content, then the answer is really simple. The NYT and the rest of the main stream media cares first and foremost about protecting it's prerogatives and second about the real story. Notice how they flipped on on the Valerie Plame issue when it was their reporters that were under fire?

As for the Canadian political scandals, they don't move an agenda that appeals to the editors. It's not a conscious effort to avoid the story as it is a case the story in the eyes of the editors only has to do with free speech issues. This is a case dealing less with liberal bias than insititutional bias. (this time)

Ok folks, this scandal has been going on for a dog's age. We know all this stuff. Anyone who has been paying attention to this know's what's been alleged.

And who's been paying attention? No one! We're tired of this scandal up here, quite frankly. These allegations are against the old Liberal government, and we now have a different Prime Minister, cabinet, and a minority government. The inquiry has cost more than the scandal did!

As to the publication ban, it was merely to protect the WITNESSES from prejudice during jury selection in their upcoming criminal trial. There will be no publication ban of their tral. If you want to know the dirt, read the trial press. What's that? You'll be tired of this story by then and won't bother to read it? Awwww, that's too bad.

Why didn't the Times print the story? Because it's the same old boring sh** that they HAVEN'T BEEN PRINTING all along. I just read today that the word "Canada" has only appeared once above the fold on the front page of the NYT in the past five years.

Go back to ignoring us America. Yes, we're liberal, but we're still boring.

In Canada the right of freedom of the press is not as sacrosanct as in the United States, Section 2B of the Charter notwithstanding.

Joe Canadian:
"These allegations are against the old Liberal government"

Not true. If you read the (formerly banned) testimony you will find out that is what was so controversial. It most certainly was not just the old Chretian liberal crew that was corrupt, several of Martin's new liberal people are in it knee deep too. There is even a suggestion that it went so far as to the Bloc.

As for WB, I think it is absolutely hilarious that he asserts something patently untrue (putting something online in publishing anywhere it is read), and then asserts that is not even controversial. And by the way, you may want to thank the Yanks, specifically the Yank military researchers (DARPA), for inventing the internet.

Folks-- Your comments are terrific. Even you, WB, with superbly asinine conclusions that Ed Morrissey broke Canadian law by publishing on the Web accounts of Breault's testimony. I can see battalions of gaily uniformed Royal Candaian Mounted Police advancing on Minneapolis to arrest the evil doer.
BTW, it's Prince Sulzberger who's in charge. But the Times is dead, the Gray Lady has breathed her last. The yahrzeit is this Thursday. Light a candle, OK?

Okay. I'm back and I'm gonna respond but I'll tone, alright? Cos this issue is really important and you folks who don't accept that publishing something happens where it is read, not where it is written, really need to rethink your position. We are dealing here in the case of Capt Ed with a court order in Canada by a Canadian judge that certain info should not be published in Canada. Ed, and all you guys whether you accept this fact or not, are in the international publishing business. you are on the internet. Ed, who knew about the court order published the protected info in Canada. He was in Minnesota or whereever in the States when he wrote it. But when he hit the post button he published his material to everyone who ever clicked on it. He knew Canadians could read his stuff. He showed utter contempt for the judge's order. He has a right of freedom of speech in America. Fantastic. But that freedom does not extend beyond America's borders. you guys do believe in borders don't you? Why can't you accept that the internet crosses borders? And when it does, then new laws matter.
For the questioner who asked about Saudi judgement or someplace else that is a bloody good question. it is THE question.
I personally do not engage in breaching Saudi conempt law. And when I blog I take care not to defame folks.
All we are dealing with here is publishing. And Ed published in Canada. you folks who struggle to grasp that really need to rethink. I am not your lawyer. Talk to folks about it.

I'll just do another note for the guy using the criticism of Kim Jong Il example - maybe not a good example, cos it deals with your freedom of speech in the States (I am presuming you are in States) vs a disgusting regime's preference to avoid criticism. I don't believe North Korea has a contempt law or a defamation law or even a cnfidentiality. I reckon they are pretty light on for legal stuff. Just abuse. But anyhoo, if Kim Jong Il had any smarts he would have to make that law very well known. Like Judge Gomery. That is not how North Korea operates - instead they just don't have computers at all. Like China shutting off its internet pipe to parts of the country.
It is not asinine to think internet publishing happens at the eyeballs not the server.
My email is real.
I am not troll - this is a great site and this comments thread has been terrific.
But Ed knew of the gag order, and he published in Canada anyway. The NYT on the other hand, long playing in this international space did no such thing. Cos they know their business. ed thinks he's a citizen hero - he's an American citizen and he does not carry his law with him when he crosses borders. At least, that is the state of the law today - it is a very new area of law and Ed could e a test case if the Canadians have the balls.
Gonna sign off - you know my views. thanks.

WB--

If the most repressive or stipid regime has the power to dictate what is posted on the internet, then the internet is flipping worthless.

Things that would be banned worldwide under such a rule:

1) Pictures of a woman's face (Saudi Arabia, Yemen, etc).

2) Criticism of any of several religions (death penalty in some places).

3) Criticism of any of several dictators (death penalty in some places).

4) Foul language (and "darn" might qualify in some places.

5) Religious advocacy (death penalty in some countries).

Now there are some things I cannot say, because, and only because, they are actionable in the United States. For example, I cannot libel someone, as defined under US law. I cannot call for the overthrow of the US government. I cannot publish top secret US documents (although the NY Times has done that). Etc.

But I don't give a rat's ass what the laws are anywhere other than the United States, and neither does anyone else I know who blogs in the United States.

You will note that you get very little support here in the States for your assertions. Maybe it's what people in Australia think, but I doubt that too, since most Aussies I know are sane.

In answer to WB: No, I do *not* care about borders. I care about individual Liberty. Period. I care about absolute freedom of speech of the Individual. Everywhere. Everytime. I want to export it (as I have exported myself to the UK). I have verbally fought for First Amendment issues all of my life, where ever I am. I will defacate and smear with excrement any law, anywhere that limits freedom of speech and freedom of the press. I and millions like me are not just excercisers of our Natural Rights, we are proponents and warriors for them.

So if Australia has any good anti-freedom laws, just let us know and we'll be happy to attack them for you.

As to any possible court case against Ed? I do not think so. No American court would extradite him. If it were run up through US courts it probably would not even win at the trial; it would have the chance of nil at the Circuit court level and if by some outside chance it reached the Supreme Court a conviction would have a moth's chance at Alamagordo of being upheld.

Dale Amon
Editor
Samizdata

I hate to tell you guys, but WB is right. There is UK case law and Australian case law that supports the contention that "publishing" occurs at the point where material is read - ie, Ed Morrisey was "publishing" information here at my computer screen in Canada. The more important question for Ed (and all others) is whether that matters to him. In the Australian case it was a large US-based news organization (either Bloomberg or Dow-Jones, I can't recall) who was held to have defamed an Australian resident under the standards of *Australian* law (which are different than US law) - even though they had placed material on a server located within the US. They decided to settle, with a cash payment and removal or modification of the content, IIRC, because the alternative was judicial seizure of their assets in Australia. This is where the matter gets interesting for Captain Ed - does the potential of a Contempt of Court Citation in Canada cause him any concern (I apologize for the alliteration)? If not - he has no Canadian assets, he doesn't plan to travel to Canada - then it's no big deal.

I read one analysis that suggested he would still be at risk if the Canadian court sought enforcement through a US court, but that was promptly followed by a counter argument that extra-territorial enforcement is not available in criminal cases, only civil (or maybe it was the other way 'round). On the other hand I do recall a recent extradition case; John Graham, a Native activist sought in connection with events at Wounded Knee two decades ago. The Canada-US treaty required extradition after the requesting State (in this case, the US, requesting extradition from Canada) simply demonstrated that they had a case to make. Argument on the merits of that case (there was question about perjured testimony from US government agents) or the applicability of the law were not permitted. Suffice it to say that Ed did "publish" in Canada, and it will take a lawyer with a good understanding both of case law and treaty obligations to advise him on the impact of his decision.

Kevin Murphy asked what would happen if (going from memory) "the most repressive or stupid regime on Earth" could control the content of what was published on the Internet? What of it? As it stands, unless you have exposure to that regime, they have very little practical ability to affect what you write (subject to reciprocal enforcement provisions). If you were, say, a citizen of Saudi Arabia and had significant assets there, you might want to tread lightly on violating their laws, even if you did so from the relative safety of Minnesota.

Joe Canadian asserts that this is just the "same old same old" as far a Liberal government corruption, patronage, graft, theft of public funds, and shakedowns. He may well be right - but if he is a Liberal supporter I think he is whistling past the graveyard in his hope that the Canadian public is satisfied with this sort of conduct by their government.

Cheers,

Dean

Dean--

WB is wrong in any substantive sense. Sure, some countries assert these powers, but cannot enforce them, and run the risk of serious reaction if they attempt to do so. I don't think they understand how serious American reaction will be.

The UK, for example, has laid claim to jurisdiction over the entire internet. The fact that the UK has its head up its ass on this one does not mean that having one's head up their ass is the correct position to maintain.

Just how "serious" will American reaction be, Kevin? If, for example, the LA Times loses in the defamation case in British courts, then those courts will seek to enforce whatever remedy they have imposed. Most likely, property and assets of the LA Times will be at risk. The article cited by CQ notes that LAT does not publish or distribute papers in Britain - the practical impact is questionable.

It is possible that the UK will seek an enforcement order in the US courts. I am sure that US courts would consider this repugnant, since the standard of proof required is so different between the two jurisdictions. The critical issue is not how the court would feel about it, though; it is whether it would be bound to apply it (this is subject to the prior caveat that a reliable opinion will have to come from someone much more versed in treaty obligations than I). I expect the upshot would be that countries (including the US) will begin to re-examine some of their reciprocal treaty obligations to apply and enforce foreign court orders, in order to limit the extra-territorial impact of such orders. It is a little rich to hear an American accuse another nation of "having its head up its ass" on issues of extraterritoriality, or have you forgotten the Helms-Burton Act, or your country's continued insistence on running the Canadian movie distribution and magazine business?

Finally, lets just consider the practice of defamation, and whether you (for example) might not like a little extraterritoriality in your laws. For example, let's just assume that I horribly defame you in this post: I claim to have personal knowledge and proof that you are a pederast and have sold military secrets to a foreign power. To make matters worse, I present these accusations in several web logs and other Internet-only locations, most of which are read by your friends, family, and employer. You are shunned, humiliated, and devastated by your loss of personal and professional reputation - finally, you lose your job. To make an easier prosecution, let's assume that I make the allegations knowing them to be false, and with malicious intent.

The servers that host these web-pages are located variously in Brazil, Botswana, the Turks and Caicos Islands, and the People's Republic of China. What makes more sense - trying to sue me in Canada, where I live, but where you have never been and have no interest in going? Or in the various locations of the servers, some of which have specific (I am making this part up, but it will come, sooner or later) statutory exemption for anything maintained in machine-readable form so long as it does not bear on a resident of their territory or its government? Or in your local county court, where you live and the effect on your reputation can be most accurately assessed, both in human and financial terms?

Currently, assuming you win your suit against me, your local court would request the Supreme Court of British Columbia to enforce the judgment, and they likely would do so (not that I have much in the way of assets, so don't get your hopes up). In that case, would you maintain that the US "has its head up its ass" because they "asserted jurisdiction over the whole Internet" or would you think that this is just how things ought to work in an Internet age?

Cheers,

Dean

Dean--

To begin with the LA Times case (and the book that the TImes peice was based on) are not published in the UK, so their claim is particularly noxious.

And I'll remind you that this all started with something COMPLETELY different than "libel." To wit: at what point do a foreign country's restrictions on political speech affect someone not a resident or citizen of said country. My answer was "at no point."

But to get back to your libel digression:

As for you defaming me here on this blog, the servers are NOT outside the US, nor do you reasonably believe they are. The header at the top of the blog mentions Los Angeles, so one would assume that this is a US publication. Not that this matters much, as the server location isn't germaine, nor is my location or nationality (except in one regard).

What matters most is where YOU are when YOU defame me, or where YOU or YOUR AGENTS choose to distribute the defamation in the case of books, magazines or newspapers.

In the case of the web, there is less to go on. Since web browsing requires choice on the reader's part, I'd liken it more to traveling to the US and being upset over what they have at the newsstand. Can't go home and sue.

Surely, the libeler's location, in whatever regime, is an acceptable juristiction. There are three further choices: the "victim's" location, the server's location, and everywhere.

The server's location is arbitrary and immaterial. It could change countries every 3 days. I know of some websites whose country of hosting DOES change frequenty and is not always apparent due to redirection. Cannot base any workable law on this, really. Like trying to nail jello to the wall.

"Everywhere" simply allows everyone to seek redress in the venue of their choice, which is not only unfair but opens everyone up to the worst kinds of kangaroo justice. Such a regime is only useful for killing the web, and anyone who seriously argues this has just that in mind.

So, the only question left is whether the injured party's country of residence is relevant (with some hedges due to nultinational individuals not forum shopping).

IF the post is directed at YOU, yes, perhaps you have cause in your home country for a post published elsewhere, IF you can show that you have been injured in said country, and only to the extent of that local damage. In the Ehrenfeld case, only a dozen or so copies of the book in question were imported to the UK, without the knowledge of the publsiher or author, and probably in violation of the publishing agreement. How much damage could there be? And how culpable is the author for the distribution?

If it is simply a post directed at no one in particular (e.g. Saudis support al Qaeda), or offensive to some but not others (e.g. naked women), or critical of public officials (e.g. Canadian press bans), then NO, only the location of the person posting has juristiction.

KM:
"If it is simply a post directed at no one in particular (e.g. Saudis support al Qaeda), or offensive to some but not others (e.g. naked women), or critical of public officials (e.g. Canadian press bans), then NO, only the location of the person posting has juristiction."

Kevin, you can SAY that, and I won't argue with you that that *might* be a better regime (although I am not entirely sure) but that isn't the way courts have acted, both in the UK and Australia, and how I expect they will act in the US, if it comes to that. The only reason that US courts have not tried to apply US defamation doctrine to material posted from -say- the UK is that US defamation rules allow much wider scope of defense: the "fair comment" doctrine, requirement for malice in the case of public figures, a wider definition of "public figure," and the reversal of the onus of proof all serve to make it easier to bring and win a libel case in the UK than in the US.

Plaintiff's attorneys (or barristers ) are not stupid - they bring suit where they are most likely to win and enforce a judgment (just as they do in the US, hence suits brought in Louisiana rather than New York, etc), so the flow of cases has been to seek US enforcement of foreign awards. That may change, for a variety of reasons.

I am not arguing that subjecting -say- your free speech rights to the rules of conduct in North Korea, Saudi Arabia, or even the UK is in any way "right." I think there is a valid distinction to be made between talking about public policy as distinguished from personal commentary - but a personal claim of libel precisely the area where you decried the UK for "claiming jurisdiction over the entire Internet," not to mention "having their head up their ass." The case in point was a publication ban intended to assure that three men accused of criminal offenses could get (or at least, assist in them getting) a fair trial. The directly comparable case is if a Grand Juror immediately decamped from a courthouse in New York and posted the contents of the testimony they had heard on a Canadian website. I imagine that would be a concern, if not to you, then to the New York court that had conducted the Grand Jury hearing.

Cheers,

Dean

The case in point was a publication ban intended to assure that three men accused of criminal offenses could get (or at least, assist in them getting) a fair trial. The directly comparable case is if a Grand Juror immediately decamped from a courthouse in New York and posted the contents of the testimony they had heard on a Canadian website. I imagine that would be a concern, if not to you, then to the New York court that had conducted the Grand Jury hearing.

Let's dispose of the "Grand Jury" canard first. The Canadian hearing was not a secret proceeding. It was open to many. The restriction involved publication, even though the politicians and the journalists all knew what went on. It was NOT in any way, shape or form a "grand jury."

And even if it was, there is no restriction in the US on _publishing_ grand jury information. There are heavy penalties on releasing such _to_ the media. In the Clinton fiasco, many leaks came out of the Whitewater Grand Jury, and no paper was ever prosecuted or enjoined. Further, as noted in the Supreme Court case I referenced in the original post, the New York Times could not even be enjoined from publishing TOP SECRET military documents in wartime.

The US has far different attitudes towards what steps are required for "fair trials." In the most immediately similar situation, during Watergate, not only were many Nixon officials called to testify, but the preocedings were televised live and gavel-to-gavel on network television. The officials had the option of refusing to testify, of course, and some took that route. Later they were tried and most all were convicted. No one would have dared to claim that these officials must testify in secret or that newspapers could not publish same -- even though they were subject to later trial, and some were already indicted. It would have been widely seen as a cover-up. As now.

Fair trials do not require an absense of press coverage. See OJ, Robert Blake or the coming Michael Jackson acquittal. In fact, the press coverage in a country with a free press (this generally includes Canada) cuts both ways. The press is making it clear that the Jackson case is a pile of crap, even though Jackson is probably guilty of something.

Waiting on releasing information CRITICAL to the decisions of a self-governing people, so that a few can have a _marginal_ increase in defensive prospects is ludicrous and transparent. Any reasonable person not caught up in shilling for one side or the other will admit that the great benefit of the publication ban was to protect Liberal Party interests. The rest is just window dressing.

Kevin - there is another difference between the two legal systems that you are not acknowledging; while witnesses in the Watergate hearings had the option not to testify under the Fifth Amendment to avoid self-incrimination, witnesses in Canada do not have that right: their testimony is compulsory. As for the Grand Jury "canard" - my point was that revealing that testimony is a crime. No matter that the criminal in this case is the Juror who leaked the information; the defense that "releasing GJ testimony isn't a crime in Canada" does not wash; the US will "seek to claim jurisdiction over the entire world" to borrow the hyperbolic description of the UK court's asserted mandate over defamation arising in LA and conveyed to the UK via the Internet. Even if the individual involved is able to escape the long arm of the (US) law so long as they remain in -say- Canada, do you think they would escape the consequences of their act (which was entirely legal in the jurisdiction where they acted) on their return to the US?

I am not sure of the relevance of the OJ Simpson, Robert Blake or Michael Jackson trials, but surely you are not trying to reference the OJ Simpson verdict as evidence of a "fair" or "just" outcome, are you? In any event, I found the publication ban every bit as offensive as you seem to have, and I agree that it worked to the advantage of the Liberals (which I find even more offensive, but then I am partisan). I don't think there is any evidence that Gomery is friendly to the Liberals, and I don't think he imposed the ban to benefit them - it was a side effect of the decision he thought he had to make to protect the right of the three accused to a fair trial. Remember, though, that this cuts both ways: the guarantee of a fair trial also protects the Crown's right to impose punishment without fear of a frivolous "lack of due process" appeal.

In retrospect, Justice Gomery may well wish he had imposed a complete ban or information leaking out of his courtroom, by holding the proceedings in camera - and he may well do so with the Paul Coffin and Chuck Guite testimony. I am not so sure that the publication ban, even had it been effective, would have prevented the timely distribution of the information CRITICAL to the decisions of a self-governing people, as you put it. As it was, he sat on the information for four or five days, including a weekend, and then decided that only the portions dealing with Brault's relationship with Guite needed to be suppressed. We would have had a problem if the Liberals had gone with the strategy of a snap election - but perhaps Justice Gomery would have decided that the information was so important that he would have released it; we will never know.

Cheers,

Dean

Sorry Canada doesn't have the 5th Amendment. Or apparently our 1st, 2nd, 9th or 10th and a few other things (like "one man one vote" districting and direct election of senators). A decison made a couple hundred years back I suppose. But then I have issues with our system, so I'll not belabor it.

As best I understand it, the people who were in the know about the hearings were not prohibited from talking about them to others. I'm not even sure that relating the information to a Canadian reporter, covered by the press ban, was in any way illegal. Surely the press knew the details. Did the order actually include "don't talk to a foreign reporter"?

The press ban was issued solely on the premise that it would poison the potential jury pool. As I attempted to argue in the US cases I mentioned, juries seem to be quite capable of ignoring what the press publishes (and even common sense), and react to the courtroom information on their own. The rationale doesn't wash. No matter how widespread any news, there are always those who've not paid attention. Especially if it's only available through a US web site, and not, say, in the news break on CBC.

Besides, are Canadians actually unable to set news reports aside when sitting on a jury? My personal experience is that it's not that hard to ignore one's prejudice in that situation. Rather a duty, I think.

Justice Gomery may indeed close the hearings. But the problem is now political and it may be viewed as an attempt to hide the government's wrongdoing from the voters, prepatory to a whitewash. I think it would be a mistake on his part. Especially noting that the recent testimony hardly touched on the case at issue, and the limited damage to the jury pool possible via foreign web repors.

If Gomery intends to "get to the bottom of this" he could offer immunity (or someone can). As things go, these guys are little fish. It's like holding all Watergate information secret until each layer of defendants had their cases come up, with every incentive to delay. "The Crown" (or rather the ruling party -- how separate are they?) is as much defendant here as prosecutor.

And this latter is the real problem.

Kevin - I agree with most of what you say; but this started out (for me) as a discussion of the assertion that the UK courts were "trying to assert jurisdiction over the whole internet" and that the UK therefore "had their head up their ass" in thinking they could do so. One of the points you made was that if any country in the world could control what was posted on the internet, then this would be bad (horrible - chose your adjective) for development of the internet. I will return to that issue, but let me address the comments in your last post:

Canada is not all that far off "one man one vote" and the US is not a paragon of exact proportionality: both Senators from Rhode Island together represent fewer people than came out to either California Senator's garden parties. Much is made of PEI or the "minimum seat guarantee" available to Quebec. PEI (and over-representation in other small provinces) is a tolerable anomaly. Quebec is guaranteed not to go down in absolute seat count - but as population goes up in other parts of the country the tendency has been to add seats, so Quebec's relative seat count declines.

I believe you are correct - there was no prohibition on in-person observers discussing the Brault's Gomery testimony; the prohibition was on "publishing, broadcasting or distributing" the information (that's not a direct quote from the ruling or the criminal code provision).

I agree that Judges should give juries more credit for being able to understand and separate what they have heard through the media prior to a trial and the testimony presented (and cross-examined) during a trial. I believe that most jurors make an honest attempt to do so, and are reasonably successful.

I am not sure what Gomery will do about going "in camera" for future testimony; so far he has been either very politically independent (or he has a real tin ear for politics). I am not sure how much going in camera would hurt the public interest, if -say- he did something similar to what he did with Brault and sat on the testimony for a day or two and then released the bulk of it, except for some narrowly circumscribed sensitive areas.

Gomery is not in aposition to offer immunity, since he is not presiding over a criminal proceeding. At a criminal trial the Crown can accept testimony under the Canada Evidence Act, which (IIRC - it's been a long time) allows testimony that cannot be used against the person testifying; in effect, it allows someone to "take the fifth" while still telling what they know. The catch is that the Crown has to offer it, which they only do when the person's testimony is important to establish the guilt of a much bigger (greater?) offender, who they otherwise would not be able to build a case against. Ultimately, it works like an arrangement for immunity. It is possible (although I think it unlikely) that charges could be dropped against -say- Brault in exchange for CEA testimony against other offenders

There is no question that (particularly in the mind of the Liberal party and its members) the line between state and party is much too blurred here. Not as bad as Mexico and the PRI, but we are going down that path. I don't think it is quite as bad as you assert, with the Crown as prosecuter and defendant - particularly with the notoriety of the case now. If all goes well, this little shindig will result in some real changes to our political culture.

As for jurisdiction and the Internet:
I agree - if every little two-bit country asserts that they have the right to regulate internet content, it would stiffle free speech and be bad for the development of the internet and for the possiblity of a well informed world citizenry. Unfortunately, they do make that assertion. To the extent they can enforce it, people who place content on the internet have to be concerned about it. As a practical matter you can ignore most of them - I'm sure that you will lose no sleep if Saudi Arabia should determine that you have defamed Islam, and that all your Saudi assets are forfeit.

The courts in these countries DON'T CARE about the development of the internet, and some of them don't care about freedom of speech. The ones that do care about freedom of speech (Australia, as an example) don't care about "American" freedom of speech - they want to enforce their laws in their jurisdiction - if they have to extend them so that you or I are subject to them, in order to ensure that they apply within Australia, so be it. In their eyes that is a small price to pay to afford Australians the protection of Australian law, and to ensure that Australians are subject to Australian law, including whatever rights they have both to freedom of speech and to freedom from harrasment or defamation.

Again looking at practice, when it comes to (in particular) personal defamation, I don't have too great a problem with it - it seems reasonable to say that defamation occurs where the target of the comment lives and has a reputation to lose. Since a judgement in (say) Vanuatu is a bit of an empty glass (absent an agreement to enforce foreign judgements) most of the issues will come about in respect of relatively developed countries where commentators have assets at risk. If that leads those countries either to harmonize standards of defamation (what it is, burden of proof, allowable defenses, requirement of intent, etc) that is probably all to the good (obviously the governments won't agree if they don't think the harmonized standards are acceptable - the problem is getting agreement from a common-law country, since defamation and 'allowable defense' is whatever the judge of the day decides it is, subject to rules of precedent). Alternatively, it will lead them re-examine and rationalize their obligations to enforce foreign judgements, and that is probably also to the good.

Cheers,

Dean

I've been told by people in, say, Alberta, that opulation growth in the west has not resulted in the expected seats. Yes, our Senators are not proportional -- it was intentional and necessary to our Founding. Living in California, I know that more than most, but being over to the Right, I'm not too keen on fixing it right now.

My upset with Britain's attitude toward libel law would be GREATLY diminished if their law did not give such overwhelming advantage to the plaintiff. Yes, US law is the same way for the defendant in cases of public figures, but that's more a deference to the 1st Amendment than any considered choice. I doubt that Britian's libel law would be consitutional if passed in the US. "Chilling effect on speech" and all that.

If the Brits really want to try Americans for acts committed in America, they'd get a lot better chance of collecting if they held the trial under US rules.

Kevin:
"If the Brits really want to try Americans for acts committed in America, they'd get a lot better chance of collecting if they held the trial under US rules."

I guess that is the nub of the issue - in the eyes of the Brits (the Aussies, Canadians, and when push comes to shove, the Americans) the "act" is not committed in the US; the act of defamation occurs where the material is read, whether that be the UK, Australia, etc. You may not like it, but it seems to be pretty-well settled. As far as difficulty on collection, that is only an issue if the defendant is judgment-proof (ie, has no assets), in the jurisdiction where the decision is made. Looking at the LA Times case; if the UK court finds that the Times libeled the British reporter, then she will have no trouble collecting if the LAT has assets or operations in the UK. If not, well then she has a tougher row to hoe.

While "freedom of speech" in the abstract is a good thing, like all freedoms it comes with some responsibility - as they say, your freedom to swing your arm stops at my nose. In the case of freedom of speech there is no unambiguously "right" place to locate my metaphoric nose; the point where freedom to speak becomes the freedom to launch unwarranted (and possibly irreparable) personal attacks under the rubric of free speech. The US and some of the other common-law countries have come to different answers to this question, but I don't think we can say with confidence that one is better than the other, or comes closer to some ideal of 'natural justice.'

Unless we come to some sort of harmonization of international defamation law, then writers on the Internet (particularly those who are affiliated with global organizations, where the possible economic loss is real) will have to remain sensitive to the laws in the places where the subjects of their commentary live. I don't think that is a bad thing, all-in-all. Remember, the subject of the commentary has to demonstrate an actual connection with that place - Geraldo Rivera couldn't sue for libel in London simply because it offers a more attractive venue. This means you only have to remember a different set of rules when you are venturing to comment (negatively) on someone who has life in a different country, and in particular, in a country where you do business or hold assets. To me, that does not seem too much to ask.

Cheers,

Dean

The real nub of the issue is that no one can know what is acceptable, unless they submit to the rule of the most restrictive, or have a lawyer vett every post.

To Americans, who have a deep attachment to almost unfettered free speech, this is unacceptable. To see Britain defend terrorist Shiekhs who hide beind repressive libel laws that ought to embarrass any reasonable person, makes us kind of crazy.

It should be noted that we are not completely hypocritical here: Brits and others say terrible and untrue things about the US and individual Americans and we grit our teeth and tolerate it. God only knows how many judgements Americans could win against the world for things said online, if we used Britian's 16th century libel laws and our own courts.

It is no accident that the US 1st Amendment was the first one ratified after we tossed out King George....we're quite attached to it and quite resent the Crown's attack on it. Any Crown, I think.