Wednesday - March 01, 2006

The Perils Of Blogging

In two and a half years of blogging, I have only posted about my workplace once - in a moment of intense anger. My attorney slapped my wrist for that. He is constantly reminding me that even though libel and slander are extremely difficult to prove in court, there are jerks out there who will sue just to tie you up in court and cost you a wad of money in legal expenses.

That is also why I continually caution members here to be careful what you say about your personal life. It’s not so much a risk of libel that gets you into trouble. No, it’s the miserable pissants who have some measure of control over you like your employer, your landlord or, in some cases, local government. If you offend, you get whacked. Why? Because they can.

Yes, in America we have freedom of speech - but it usually only applies to Liberals who seem to have a license to say whatever their tiny little brains feel like. The same rule applies to corporations who can lie to shareholders and employees on a whim but insist on their employees toeing the line on public speech. Your boss can fudge the numbers on a quarterly report and even bankrupt the company right out from under you but if you go on your blog and call your company names you’re going to find yourself in a miserable office punishment situation with your boss, a representative from Human Resources and a written reprimand, if not a termination notice.

Is that fair? Maybe. Employers expect a reasonable amount of loyalty to the company from the employees. At the same time employees have a right to expect some semblance of privacy in their personal lives, in my opinion. Unfortunately, it doesn’t always work that way. Here is the latest list of blog casualties. Companies judge you when they hire you based on your work history, education, experience and personality. That’s reasonable. Do they have the right to judge you based on your personal opinions? Good question. How badly do you need a paycheck?

That’s bad enough but now we’re starting to see stories of people like the lady below who faces eviction from her apartment because of statements she made about her landlord. Read the entire piece and go look at the link above to the “Blog Casualties” list. Maybe then you’ll understand why I keep an attorney on full-time retainer. It’s bad enough reading some of the hate e-mail I get every week from people with low IQ’s, limited vocabularies and hot tempers - and that’s just the mail from Democrats. You ought to see the real nasty stuff from overseas. I’ve been cussed out in seventeen languages, at last count.

There are indeed days when I wake up, sit down here at the keyboard and wonder .... is it worth it?

Woman Faces Eviction Over Internet Innuendo
February 28, 2006 @ 07:00

KINGSTON, Ontario (THE WHIG-STANDARD)

On the Internet, you are responsible for your words, and people are finding that postings on Internet bulletin boards and blogs can bring real-life consequences. A woman in Kingston faces eviction later this week for postings she made to a personal website detailing an ongoing dispute with her landlord, Homestead Land Holdings Inc. Sarah Dawe says she won’t take down the blog, which Homestead is demanding in letters and a notice of eviction that takes effect on Thursday, but is stunned that she is on the receiving end of such an action.

“When I got the notice, I went into a panic, I couldn’t eat or sleep for four days,” said Dawe, who lives on The Parkway. On Dec. 8, she received a letter from one of Homestead’s lawyers, Donald B. Bayne, stating the company and its employees named on the site “take very seriously the false, malicious and libellous statements you have published about them on your website,” and that the company had complained to her site host, Lycos, which took the page down.

She reposted the material on a Google blog as it is U.S. based, the laws protecting Internet Service Providers are different than in Canada and they are more difficult to sue and on Feb. 10, got an eviction notice with the blog cited as the sole reason. It stated that Dawe was using the site “to publicly denounce and harass the landlord and its employees with malicious untruths” and said it would evict her if she didn’t take it down.

Dawe has started an appeal of the notice through the Ontario Rental Housing Tribunal and is looking for a lawyer or paralegal to represent her. “Blogs are personal diaries,” she said. “Anyone can read them, but with mine, except for people trolling or spamming, I was probably the only one reading it.” The company declined comment given the nature of the situation and the privacy issues involved, but Dawe isn’t the only one finding that words on the Internet often carry consequences.

A train driver with Via Rail resigned from his job of 30 years after the company gathered postings he made to a satirical magazine’s website over a three-month period on his own time with his own computer, and began dismissal proceedings against him. A stay-at-home mother in Waterloo was slapped with a $2 million libel suit from a property developer after she posted pictures of what she said were unsafe construction practices at a development near her home.

And just last week, a Saskatchewan math professor who anonymously skewered his colleagues on a popular site allowing students to rate their professors lost a bid to get his job back after being fired for those comments. Libel lawyers and technology watchers say as more people use the Internet, the number of people getting in trouble for electronic words whether on websites and blogs, e-mails or electronic bulletin boards is also rising.

The technology may be new but the law isn’t, and while there are some ragged edges yet to be sewn between the new and the old, the underlying principles in cases such as Dawe’s remain the same. “It’s as though this person were putting up flyers or putting them under people’s doors,” said Toronto lawyer David Potts, who specializes in the fast-growing field known as “cyberlibel.”

“There’s no difference between doing that and putting it on the Internet, but by putting it on the Internet, they can have as large an audience as any other website This is no different. “It seems new because it’s out in the ether, but cyberlibel is just a form of information warfare.” Marc-Andre Blanchard of Gowling Lafleur Henderson LLP said such cases are more prevalent, particularly in labour law where collective agreements may make it difficult for a company to sue an employee they consider to be slandering them but allows them to start a disciplinary action.

“It’s more and more common in labour relations,” he said, noting that many of the cases go unpublicized because such processes are rarely open to the public. However, he called firing an employee based on their Internet postings on their own time “extraordinary” and said he had not heard of a similar case. The Via Rail driver was Dan Christie of Port Hope, a self-identified “whistleblower” who on his own time between March 1 and May 15, 2004, wrote about turmoil inside Via Rail under a pseudonym on the bulletin board of the Frank Magazine website.

At the time, Via was being rocked by its role in the sponsorship scandal and its president had publicly denigrated Olympian Miriam Bedard. Christie wrote about the turmoil within the corporation and what he felt was its mismanagement. On June 16, he received an order to appear at the Via administrative offices in Toronto to provide a “formal employee statement” in regards to those comments. Although the union that represents Via employees wanted to fight the action, and it would have raised important issues of freedom of speech, Christie had 30 years on the job and chose to resign.

“For anyone seeing this stuff from within Via, it was a fantastic waste of money,” he said of his motives. “We were working for a Crown corporation, a de facto arm of the government, and do we not have a chance to complain about how our taxdollars are being spent, even if they’re being spent on us?” He knew he was being provocative, but said none of his Internet comments contained anything that would be considered illegal, such as exhorting people to commit illegal acts.

“I was venting the frustration of people who were working there and who were not being able to serve the public the way we wanted to,” he said. Christie said he was shocked to find out that not only was Via apparently reading his postings but tracking and collecting them for use against him, and speculated that one purpose was to discourage other employees from doing the same. “At the time, there was an implicit chill that you’d shut up or you’d lose your job, and that’s what happened in my case,” he said.

That area sometimes known as reputation management is also a growing field and is taken seriously enough that many large companies have staff or outside firms tracking what is being said about them, and often their competitors, on the Internet. Corporations also register so-called “sucks” websites typically the company’s name followed by that word to stop people owning it and posting criticism of the company, either in a boycott of it or to ransom the company into buying the domain from them in order to take it down.

One of the reasons people tend to get away with more on the Internet than they ever would in a traditional printed form is that statements can be published electronically for no cost, but hiring a lawyer to pursue a claim is not free. The person being sued may also have little money as he or she is not a major media conglomerate, lawyers point out. “It’s seldom worth it to chase these people down because at the end of the day, there ain’t anything there,” said Randy Pepper, a partner with Osler, Hoskin & Harcourt LLP and a veteran litigator in the areas of defamation and misleading advertising.

However, he said there’s an indication that courts may start awarding high damages for material determined to be defamatory that is posted on the Internet because of its broad potential readership. Unlike a newspaper or a television broadcast, something on the Internet is available to anyone in the world. While a definitive court definition of what constitutes “broadcasting” has yet to be made, anyone posting anything anywhere on the Internet can be considered to be a broadcaster, unlike a decade ago when it was restricted to TV and radio stations holding a government licence.

Lawyers also say people posting on the Internet may think they are anonymous when, in fact, they are anything but. That perceived cloak of anonymity leads them to post opinions that they would never put in a signed letter to the editor, for example. However, while the cost and difficulty of taking libel action against an individual in most cases is a pragmatic protection against legal action, it is by no means bulletproof. “It’s like the case of a dog bite,” points out Roger McConchie, a Vancouver media lawyer with extensive experience in libel and Internet law.

“People are normally given a couple of free kicks at the can, and almost every significant case has involved repetitive, continuous publication by people whose conduct is unrepentant even after repeated warnings. Those are the people that you hear about.” He noted, given the amount of material on the Internet that could be considered libelous, only a tiny percentage ever becomes the target of legal action.

“When it comes to what I would call unsophisticated publishers’ which is what a lot of these individuals are even if it’s egregiously libel, as long as it’s not egregiously malicious, they’re not going to be chased to the ends of the earth.” But Dawe, who has appealed the eviction order, said she thinks she has done nothing wrong and won’t take down her website. “If they had a legitimate legal reason for getting me to shut down the blog I would, but they don’t,” the Kingston resident said. “It would be like cutting off my nose to spite my face.”

Posted by The Skipper     on 03/01/2006 at 04:04 AM   
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Not that very many people ever read this far down, but this blog was the creation of Allan Kelly and his friend Vilmar. Vilmar moved on to his own blog some time ago, and Allan ran this place alone until his sudden and unexpected death partway through 2006. We all miss him. A lot. Even though he is gone this site will always still be more than a little bit his. We who are left to carry on the BMEWS tradition owe him a great debt of gratitude, and we hope to be able to pay that back by following his last advice to us all:

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It's been a long strange trip without you Skipper, but thanks for pointing us in the right direction and giving us a swift kick in the behind to get us going. Keep lookin' down on us, will ya? Thanks.

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