In a case which has evident implications for Canadian bloggers but also for bloggers worldwide, Kazaa Australia boss Nikki Hemming is suing Canadian blogger Jon Newton and others for defamation, on the basis of an article earlier this year on Newton’s p2pnet site, as reported in this week’s IT Today section of the national daily The Australian (not a hyperlink permalink, no guarantee it will be there indefinitely).

The suit is over material posted on p2pnet and anonymous comments on that post, some months ago at a time when Hemming was in court in a Sydney case. Included in the suit with Newton are his ISP and four John Doe, anonymous commenters. The article has since been removed from the p2pnet site.

Jon Newton is disputing the suit vigorously and observes that if Hemming wins the case ‘it’ll open the door even wider for lawsuits against Canadian bloggers’  .

Canadian internet law professor Michael Geist has commented on the case and its implications in his BBC Online article Free speech, libel and the internet age. Geist draws attention to how the legal frameworks in different jurisdictions have a variety of implications for internet intermediaries, such as internet service providers and even individual bloggers who allow comments.  

The difficult question is not whether these sites and services have the right to voluntarily remove offending content if they so choose – no one doubts that they do – but rather whether sites can be compelled to remove allegedly unlawful or infringing content under threat of potential legal liability.

The answer is not as straightforward as one might expect since the law in Commonwealth countries such as the United Kingdom, Canada, and Australia varies depending on the type of content or the nature of the allegations.

Canadian media lawyer Dan Burnett also comments on the different treatments in different jurisdictions, in his statement as reported at the August 5 Toronto Freedom of Speech Online concert and benefit. Burnett sees Canada as being laggard in reforming the law and comments:

In addition to the reforms we are lagging behind already, the internet age raises some new and fundamental questions. How does the right of reply on wiki and reader-post sites affect the law? Are we going to hold site operators liable for automatic posts by others? Are (we) going to recognize a defense for a person who operates a public forum for debate?

So where are bloggers without ready resource to internet lawyers to go for advice on these matters?

It seems not uncommon for bloggers to refer, on defamation and other legal issues, to the Electronic Frontier Foundation Legal Guide for Bloggers. That’s good as far as it goes, and there is some good advice in the document, but unless I’m missing something the document is a legal guide for the United States of America, not a global guide. (Actually, from a chat today with a lawyer friend very knowledgeable in these matters, I would seriously doubt whether a comprehensive global guide of any depth in this area is likely to emerge in the near or distant future.) 

Whatever the peculiarities of various legal jurisdictions, clearly some degree of prudence is needed in terms of what we post to our blogs and what we allow in terms of comments. Dave Taylor had some good advice on this in his post last year SEO Book’s Aaron Wall sued over comments on his weblog: Dave saw the case as ‘a wakeup call to business bloggers who haven’t yet thought through their own comment and comment moderation strategies’. 

And however the currrent case in Canada turns out, it too is clearly a call to look at the posting and comment moderation policies for our own blogs and those of any companies to which we consult.