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.