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April 04, 2005

Adscam, Canada, Censorship and the Gomery Enquiry.

This isn’t a story that’s had much play on this side of the Atlantic but as it’s about (probably) to cause a Canadian election and if so, highly likely to bring down the Liberal minority govt. of Paul Martin, perhaps it should.

At the root of it is something we would be more likely to think of as being French (or Belgian, Italian, you know us Little Englanders, always accusing the continentals of being corrupt) rather than Canadian. Essentially, the Liberal govt of Jean Chretien set up an advertising campaign to explain to the Quebecois what a wonderful idea Federal Canada was as opposed to going it alone. Over the years, large amounts of this money got recycled back into Liberal Party coffers to pay for election campaigns and the like. So far, so very continental, and aides of l’escroc are on trial for similar right now. The French Commissioner of the European Union was found guilty and then pardoned of a similar offense some years back. We have seen this story before.

However, North America is more like Britain, these things may happen, but not here at home it’s foreigners that do that, we’re better than that, at least that’s how the natives think.

OK, so Canada sets up the Gomery Enquiry, as well as a series of criminal trials. Now, at the end of last week one of those about to be tried gave evidence to the enquiry. The judge insisted that the evidence not be made public, be held in camera, until the jury had been empanelled for the trial. We would think nothing of that here in the UK. Almost standard operating procedure. Same in Canada, not a surprising thing to do at all.

However, two further things happened. One was that Liberal Party operatives were put on alert for a snap election. Obviously people, at least some people, thought that the evidence would be so damaging that there would be no alternative. The second was that the evidence given (and it is shocking, showing a great deal more grubbiness than expected. It’s almost as if l’escroc and Silvio together had been teaching them) was leaked to a US based blogger, Captain Ed.

Now we get to the matter of the moment, for one of the Canadian TV stations, knowing that they could not broadcast the evidence, directed viewers to Captain Ed, his blog of the actual evidence being here. You can also see his post with new evidence to come here, a backgrounder from Winds of Change here (a very good one actually), and further information from within Canada at Small Dead Animals, here and here.

Now, here’s the part of the story that I can add to. No, not about the corruption, the evidence, or the reason for the publication ban. I think we English can understand all of that, let a bunch of French speaking politicians near a sack of tax money and you’re going to have problems, some of it will disappear over the horizon, and we are entirely used to the idea of bans on publication before trial. From the moment charges are laid until the trial is finished there are severe restrictions on what may be said about the case or people involved in our jurisdiction.

However, the US blogs gleefully reporting this are assuming that they are subject to US law on these matters, subject to the First Amendment only. As I pointed out in my Techcentralstation column last week, this is not true. Electronic publications are deemed to be published where they are downloaded, not where they are written or hosted. This has been dealt with in two Anglophone jurisdictions, there is a case in our own courts concerning The Governator right at the moment, Dow Jones settled a case in Australia just before the appeal, and, get this, in Canada there is already case law that the online archive of a US newspaper is deemed to be published in Canada if someone in Canada reads it.

Start with this story about Rachel Ehrenfeld and the Saudi Sheik bin Mahfouz, where a book is published in the US, a few copies of which make it over to the UK, whereupon she is sued for libel under the English laws. Whether she did in fact libel the Sheik is not my point at issue; it is that English law has been clear on this for decades. If a copy of a magazine or book arrives within the jurisdiction, then its contents are actionable under English law. If you think this through for a moment it makes perfect sense. Crimes are defined by the jurisdiction in which they take place, marrying your 13 year old cousin might be legal in Arkansas, as Jerry Lee Lewis showed; drinking at 18 is legal in Mexico as Spring Break shows, but that doesn't mean that on return from Cabo San Lucas that a 19 year old can have a drink with Sammy Hagar in New York. Or his cousin. Well, not legally.

 

Then there is this slightly earlier story from the online journalism review concerning the online archive of a newspaper. What is the governing jurisdiction: the one where the article is hosted, or the one where it is downloaded? The answer appears to be where it is downloaded. To back this point up there is the story of Dow Jones being sued in Australia for an article about an Australian, which while written and published in the US was downloaded inAustralia. Dow Jones has just settled that suit a few months back.

 

Now, leave aside the details of the case for a moment and think only about the injunction against reporting and the US ideas on Free Speech. Quite obviously there is a conflict between these two things. There’s a few things that might happen. The Canadian judiciary gives up and says the news is out so forget it. I don’t think that will happen. Our own judges in the UK do not take the view that what is said outside England means that you can say whatever you want inside England. In fact, that’s one of the points of the above Ehrenreich case. So I think they will sue for breach of the non-reporting injunction. And they’ll win in Canada.

The next question will be whether the US courts will (assuming that people have no assets in Canada to be confiscated) enforce the judgement in the US. Now the normal rule is that they will, assuming that such enforcement would not be (some phrase I don’t actually know here, "grossly unjust"? "Contrary to natural justice"? "grossly disproportionate"? something like that) against the American principles of jurisprudence.

This is where it will get very messy, very messy indeed. For US courts do, at times, impose limits on what may be broadcast or published about a case and defendants. So the basic principle that the Canadian court was attempting to uphold, that in order that the criminal trials should not be prejudiced, the enquiry should not be broadcast until after the jury is empanelled, is not alien to US courts.

So, what will happen? At this point I would say we’ll just have to wait and see. Lame ending hunh? No, not really. Because whichever way this works out in the next couple of years as courts scream at each other is going to be one of the defining moments of how law develops on the internet.

Are we liable for what we write where we write it? Or where people read it?

At the moment we are liable where people read it and it might just be that the US courts won’t like the long term implications of that and will refuse to implement it.

I’m not sure if Captain Ed is going to like the medium term implications of that, but he might find himself at the centre of the first Supreme Court case involving blogging.

Udate. There is more detail on the laws and cases mentioned here.

April 4, 2005 in Weblogs | Permalink

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» Canada's Watergate - Adscam from Wizbang
The Canadian government is in the midst of a Watergate-style meltdown, and the internet is hastening it's collapse. Our friend Ed Morrissey has published accounts of testimony before a court that Canadian publications have been banned from reporting on... [Read More]

Tracked on Apr 4, 2005 8:25:36 PM

» Adscam and internet liability from Arthur's Seat
Canadian politics - usually as sober as its citizens - has been shaken up by the [Read More]

Tracked on Apr 4, 2005 10:17:52 PM

» SOMETHING ROTTEN IN CANADA from Michelle Malkin
Captain Ed , always ahead of the curve, is all over an explosive corruption scandal in Canada, where citizens are hungering for news because of a government publication ban related to the story. Go visit and keep scrolling down. Here's... [Read More]

Tracked on Apr 4, 2005 10:23:38 PM

» You Thought It Was Nuclear Before? from The Politicker
This would make it beyond nuclear: Now, here's the part of the story that I can add to. No, not about the corruption, the evidence, or the reason for the publication ban. I think we English can understand all of... [Read More]

Tracked on Apr 4, 2005 11:08:26 PM

» SOMETHING ROTTEN IN CANADA from Michelle Malkin
[Bumping to the top with lots of updates. Make sure to catch up on all the latest below. This one of the biggest stories on the 'Net and of vital interest to bloggers and whistleblowers on both sides of the... [Read More]

Tracked on Apr 4, 2005 11:23:35 PM

» You Thought It Was Nuclear Before? from The Politicker
This would make it beyond nuclear thermonuclear: Now, here's the part of the story that I can add to. No, not about the corruption, the evidence, or the reason for the publication ban. I think we English can understand all... [Read More]

Tracked on Apr 4, 2005 11:25:00 PM

» SOMETHING ROTTEN IN CANADA from Michelle Malkin
[Bumping to the top with lots of updates. Make sure to catch up on all the latest below. This is one of the biggest stories on the 'Net and of vital interest to bloggers and whistleblowers on both sides of... [Read More]

Tracked on Apr 4, 2005 11:25:04 PM

» SOMETHING ROTTEN IN CANADA from Michelle Malkin
[Bumping to the top with lots of updates. Make sure to catch up on all the latest below. This is one of the biggest stories on the 'Net and of vital interest to bloggers and whistleblowers on both sides of... [Read More]

Tracked on Apr 4, 2005 11:27:17 PM

» Top Ten Categories: Media Bias. from WILLisms.com
A great list of media bias (via Ed Driscoll): 1. The Lie. 2. The memory hole. 3. Ventriloquist journalism. 4. Polls. 5. Buzzwords. 6. Coordination with the Democratic candidates. 7. The smear/personal attack/outrage. 8. Euphemisms. 9. False appearance ... [Read More]

Tracked on Apr 5, 2005 2:28:28 AM

» Top Ten Categories: Media Bias. from WILLisms.com
A great list of media bias (via Ed Driscoll): 1. The Lie. 2. The memory hole. 3. Ventriloquist journalism. 4. Polls. 5. Buzzwords. 6. Coordination with the Democratic candidates. 7. The smear/personal attack/outrage. 8. Euphemisms. 9. False appearance ... [Read More]

Tracked on Apr 5, 2005 2:29:41 AM

» Top Ten Categories: Media Bias. from WILLisms.com
A great list of media bias (via Ed Driscoll): 1. The Lie. 2. The memory hole. 3. Ventriloquist journalism. 4. Polls. 5. Buzzwords. 6. Coordination with the Democratic candidates. 7. The smear/personal attack/outrage. 8. Euphemisms. 9. False appearance ... [Read More]

Tracked on Apr 5, 2005 2:32:42 AM

» Michelle Malken on "SOMETHING ROTTEN IN CANADA" from Hyscience
Imagine being susceptable to ending up in court for contempt just for linking or even passing out the address to Captain's Quarters! There's more wrong in Canada than just a corruption scandal. [Read More]

Tracked on Apr 5, 2005 3:46:22 AM

» Canada's Watergate - Adscam from Wizbang
The Canadian government is in the midst of a Watergate-style meltdown, and the internet is hastening it's collapse. Our friend Ed Morrissey has published accounts of testimony before a court that Canadian publications have been banned from reporting on... [Read More]

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» A CROSS-BORDER SCOOP from Peaktalk
Unless you've been living on another planet I guess most of you are now up to speed with the publication ban in Canada on a number of testimonies before a public inquiry into the misappropriation of public funds (the "Gomery... [Read More]

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» A CROSS-BORDER SCOOP from Peaktalk
Unless you've been living on another planet I guess most of you are now up to speed with the publication ban in Canada on a number of testimonies before a public inquiry into the misappropriation of public funds (the "Gomery... [Read More]

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» Pink bits 51 from Blithering Bunny
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» Blogs, libel law, and forum shopping from Martin Stabe
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» Blogs, libel law, and forum shopping from Martin Stabe
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» Canada's Liberals Deep in Corruption from The (not so) Daily Me
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» Extraditing U.S. bloggers? Don't think so... from BrinkReview
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» Late news from Drivel From the Far Side
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Tracked on May 11, 2005 5:43:01 AM

Comments

How does this square with the normal stance that its where a site is hosted/published from is the determining factor?

Gambling is mostly illegal in the US and gambling sites get away with serving customers in those jurisdictions by hosting their site someplace that it is legal.

Pornography is subject to "community standards" of obscenity but we've settled (until now) the issue of which community prevails - against enforcing the standards of the community where the stuff is consumed.

At least on first glance, American law will not look favorably on enforcing a judgement.

Posted by: Agammamon | Apr 4, 2005 8:11:21 PM

The only parts of the SCOTUS that I can see even considering enforcing the judgment and publication ban are Ginsburg, Breyer, and maybe some others on the Left. Ginsburg in particular is a real advocate of harmony with international law, so the settled case law in other countries may play a role. Also, many of the moderates and left on the Court are amenable to balancing tests, and might well weigh the interest in a fair trial against the First Amendment. Scalia and Thomas (and also Kennedy on the First Amendment) tend to be more absolutist; the freedom of speech and press is written down, the right to a fair trial much less so, so the First Amendment wins.

Posted by: John Thacker | Apr 4, 2005 9:38:39 PM

I don't know what I find more offensive...The corruption in our federal government or the so called publication ban. This my governemnt, my tax money (OK so it's only a few of my cents but that is not the point).
I thank the courageous american "blogers" and sicerely hope that the US. govt. refuses to support any inane judgements by foreign courts!

Posted by: martin polach | Apr 4, 2005 10:47:50 PM

A very interesting analysis - thank you. One samll correction; Justice Gomery did not order that the hearing continue in camera - he ordered it to continue as a public hearing, but subjected the testimony (and argument) to the publication ban. It doesn't make any difference to Captain Ed or any of the other participants, except that the person who provided the details of the testimony in question need not have been a court reporter or officer of the court.

To the comment about location of internet gaming sites - you will note that most of these are located in jurisdictions that do not have provisions for reciprocal enforcement of court orders. This renders US (Canadian, UK, European, etc) courts powerless to actually apply any sanctions they impose. The situation with the US and Canada is obviously much different - Candian and US courts routinely enforce each other's judgements.

Cheers,

Dean

Posted by: Deaner | Apr 5, 2005 12:37:40 AM

Are American citizens subject to the dictates of foreign judges in foreign countries when they are living, and writing, in their own country? Does the first amendment cease to apply to the American blogger if a Canadian judge issues an order in Canada? This is an interesting question, because the answer lies not just with the Canadian court and laws, but American laws as well. I would be interested in hearing information from an American lawyer.

Posted by: Dawn | Apr 5, 2005 4:08:07 AM

I don't think the US courts will enforce the Canadian ruling in the US and here's why:

Right now the US government is enforcing a number of little ankle-biting decisions against Canada (maintaining the ban on Canadian beef, softwood, et al.) because Canada didn't assist in the Iraq War and because several of our politicians have opened their big mouths and made the problems worse by bad-mouthing the U.S. President, in particular. Now, the US is no longer inclined to see us as a dotty old auntie to the north and indulge our peculiarities but rather as an active thorn in their side and a mean-spirited one to boot! So Cap'n Ed is probably safe, this time; but what we all should do is simply publish and be damned. Civil disobedience against this most corrupt of all governments. This tells me one thing: Canadians can be dhimmified, no problem; and if the Liberals can do this to us, think the Islamists will have any problems cowing the average Canadian? We're not what we once were, that's for sure!

Posted by: foreign devil | Apr 5, 2005 4:33:56 AM

The notion that an online pubication is subject to the laws of the jurisdiction where it is downloaded is simply absurd! That view subjects all Internet communication to the laws of every country on earth!

Tim adds: Well ,that’s the thing, it isn’t my view, but the view of the courts.

Posted by: David C | Apr 5, 2005 4:59:46 AM

The statement that online content is subject to the law of the country in which it is downloaded may be true in theory, but in practice 99% of the time it is an empty statement. After all, who is enforcing this law? There is no international concensus, therefore the burden of enforcement must lie with the country in which the content is downloaded.

So how is this any different from a Belgian judge declaring that US soldiers are guilty of war crimes? Or an Iranian judge declaring that Swedish porn stars are breaking Islamic laws, and thus must be punished in Iran? A law is only as good as the means to enforce it, and other than a handful of high profile libel cases, I can't see this one posing much of a problem.

Tim adds: I agree that it is enforcement which is the issue. Which is precisely why I see this case as important. Will the Canadian courts attempt to impose penalties on US bloggers, and will the US courts aid them in doing so?

Posted by: Tim Newman | Apr 5, 2005 5:28:01 AM

We Americans will never, ever tolerate judicial action in the US against Ed Morrissey. It will not cost him a dime to defend himself.

The courts in the UK and Canada that are accustomed to this kind of publication ban might as well admit that they have no more power over the Internet than King Canute had over the tides.

It's the Boston Tea Party all over again. We'll get out our war paint and tomahawks and throw whatever crap the Canadians want to sell us in Lake Erie.

Posted by: Charles R. Williams | Apr 5, 2005 11:25:57 AM

Wasn't this already answered in the case where France went after Yahoo?
I'm pretty sure that US courts will tell the Canadian ones to go screw. They can prosecute their own citizens, but there's no way an American court is going to set a precedent where some other country, without our First Amendment, could impose their censorship on us.

I hope.

But then, I thought they would repeal McCain-Feingold.

Posted by: Mike Veeshir | Apr 5, 2005 1:23:54 PM

Tim,

A fascinating article on a fascinating problem.

However, I think you should be afraid: by the argument you propose here, you could be in trouble if anyone reads this post in France. The fact that the French Commissioner was even tried at all, let alone found guilty, is not allowed to be published in France. Technically, I think he can sue for libel....

Tim adds: the information was revealed in Parliament. Privileged (at least I assume that applies to the EU) and if it isn’t, well, two fingers to’em.

Posted by: Hew BG | Apr 5, 2005 2:58:14 PM

Your "legal analysis" is indeed dubious, since you seem to not even understand the difference between civil and criminal law!

1) Gomery could see fit to lay a criminal charge against Captain Ed for contempt of court. Chance of him being extradited: ZERO.

2) The judgments you refer to above are civil matters...and in these matters, who in Canada has a tort that they could lay against Ed???

Posted by: Blue | Apr 5, 2005 5:21:46 PM

Jurisdiction in a civil action depends on whether damage was done in the jurisdiction. If an online publication is downloaded in the jurisdiction, the court can hear the case, since it's the reading that takes place in the jurisdiction that causes the damage. There's nothing comparable going on here.

Captain Ed is not a resident of Canada and is therefore not subject to the order in the first place. Nor can he be charged under Canadian law for any criminal offence since he has committed no offence in Canada. He hasn't set foot in Canada. There's nothing he can be extradited for.

It's not a breach of the court order to learn any of this information or to pass it on. The order forbids publication. Captain Ed's source has not broken the law. Nor has anyone who reads it in Canada or who links to Captain's Quarters. The New York Times is free to print this stuff. Any Canadian would then be free to go across the border and pick up a copy, to pass it on, and to advise his friends to do the same. That's all that's happening now with Captain Ed.

Posted by: ebt | Apr 5, 2005 9:03:44 PM

For US courts do, at times, impose limits on what may be broadcast or published about a case and defendants.

No. US courts cannot impose a ban of this kind. They *can* impose a gag order - an order to the principals of a case, and the officers of the court, not to discuss the case with anyone - but this is not a general ban on discussion or publication. It applies only to those people directly involved in the case, and is in no way comparable to the Canadian procedure we're discussing, which is binding on every Canadian citizen.

There is simply no way that a US court will enforce a ban on Americans discussing a case in a foreign court. It is absolutely inconsistent with the first amendment. Not even this SC, which you never know what it will do these days, would make such a ruling.

Posted by: jaed | Apr 6, 2005 2:55:48 PM

America is a common law country. Over time the laws reflect actual citizen behavior.

I can't imagine Americans being quiet on this or any other subject.

Thus holding American citizens to task for free speech is not going to work. Even if the law mandates American silence the law will not last.

Posted by: M. Simon | Apr 6, 2005 7:38:11 PM

Reasoned analysis from you Tim. Utter contempt by the American commenters on the laws of another jurisdiction. Capt Ed published material in Canada that he knew was not for disclosure in Canada. Imbecile. The fact he is sitting in the US is neither here nor there, but listen to the US folks squeal. They want to carry their law with them into every country when they publish on line. Dow Jones and Gutnick in Oz makes perfect sense. Material is read where it is read not where the server is. I hope Capt ed gets whacked, contemptuous fool.

Posted by: WB | Apr 7, 2005 3:02:53 AM

Capt Ed published material in Canada

Well, no. He published material in the United States, on a server located in the United States, which he knew Canadians had the ability to view, Canada being connected to the Internet. This is not quite the same thing. Among other problems with this formulation, there is no way to publish any material on the Internet, anywhere, without "publishing it in Canada".

This applies to other countries as well. There is, for example, no way to publish any material on the Internet - in Canada or anywhere else - without "publishing it in Saudi Arabia". If you don't want everything you post to be subject to the laws of Saudi Arabia then perhaps a little slower to call for the "whacking" (assassination? prosecution? whatever) of Captain Ed.

Posted by: jaed | Apr 7, 2005 6:46:36 AM

Jaed,
As far as defamation laws go (which is, as has been pointed out above, different from criminal law and gagging orders) everything on hte internet is indeed published in Saudi Arabia and is subject to Saudi law. That’s why the whole case is so interesting.

Posted by: Tim Worstall | Apr 7, 2005 7:03:42 AM

WOW WOW WOW WOW !!!!!! The BAN has been LIFTED!!!
People who voted Liberal are either bastards or stupid!!!! You choose.

Posted by: Marc Authier | Apr 7, 2005 10:04:09 PM

What I see happening here is that the Gomery mess and the Liberal slush fund scandal is again another pretext for Quebec bashing by some ( not all) English Canadians. Quebecers did not ask to be flooded with Canadian flags, golf balls, banners and other memorbialla after the close referendum defeat. What Canadians should of done after the referendum is embrace Quebec’s' cultural difference and, yes, maybe try to learn a bit of French instead. Don’t get me wrong, I am a Canadian and I want this country to continue existing with Quebec as a part of it but I am sick and tired of some Canadians doing their best to rip this country apart with their, lets say semi- racist anti French Canadian views.
Ray

Posted by: Ray | Apr 9, 2005 2:54:02 AM