by KRISTIAN GRAVENOR

The question of online free speech and its limits has yet to be comprehensively addressed by courts here and in the United States, but alleged defamation via posting is becoming an increasingly important legal debate. Consider the case of one Montreal telemarketing company, whose aggressive sales pitches have been countered with at least equal force by anonymous Internet posters, who have bashed the company with impunity on several scambuster sites, including www.ripoffreport.com.

Infotel, which sells business directories, is attempting legal action against one such poster, whom they say is a disgruntled ex-employee but would not name. The experience has provided Infotel with a quick lesson in the tricky world of chasing online insulters.

"In practice, anonymous people writing on the Internet seem to be able to get away with comments that would never be considered acceptable on radio or TV or in the press," complains Richard McConomy, a lawyer Infotel hired to launch a civil suit against the defamers.

Infotel's topsy-turvy legal odyssey is being stalled by complex questions about international jurisdiction. So far, the company has only been able to negotiate that some of the more personal attacks be taken offline. In a legal disclaimer on the site, Ripoffreport.

com founder Ed Magedson denies responsibility for what anonymous contributors post on the boards. He also says that because the site is based in Tempe, Arizona, it is only subject to Arizona and federal U.S. law. While legal action has been taken against him in the past, Magedson writes in an e-mail, he has "never lost a case."

Libel versus hate

Muddying the online libel issue is legal confusion in the U.S. "Internet providers in the U.S. enjoy some of the world's broadest immunity from libel-related lawsuits, thanks to the 1996 Telecommunications Act," says Declan McCullagh, senior writer at CNET's technology news and business site News.com. "But the full scope of the Act's immunization is still unclear. We won't know for sure until the U.S. Supreme Court rules in one of these cases." Canada's laws, in turn, could depend in large part on developments in the U.S.

But Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa and often considered Canada's leading authority on Internet law, believes that Web sites are no different from other media. "Certainly online defamation presents a challenge to bring a civil case action against," he says. "Often the starting point is to identify who the party is behind the speech, and there are methods of tracking them down. It's expensive and time-consuming, but it can be done."

Meanwhile, last April Justice Minister Irwin Cotler insisted that current laws were sufficient to prosecute hate crimes on the Internet, but he has since done an about-face with recent comments vowing to toughen up legislation. Geist points out that online defamation and hate crimes are legally separate, as hate is usually a criminal rather than a civil matter, and it frequently emanates from organized groups who seek publicity rather than the anonymity of the Internet insulter. Geist sees no need for what Cotler's recommending.

"We've got mechanisms to go after some of the vile hate that's online," he says. "The Human Rights Act would be one example, but the Human Rights Commission has been very slow to act. They've been moving, but at less than Internet speed."

Complicating matters

Local civil rights lawyer Julius Grey says that the messy Internet speech issues could benefit from some clear international cooperation and legislation. "There are lots of issues and questions," he says. "You have to decide where the offence or civil delict is committed; is it where the server is, or where someone has been watching it? And even if you can trace the computer to a particular place, do you know who was in the house and who used it? It's a world-wide problem, not just of hate, but of libel and intellectual property, and those things must be legislated."

Even McConomy, who has been mocked by online detractors for his association with Infotel, believes that limiting freedom to yak on the Net could be a hard sell. "Look at what the bloggers have done in the States during the election campaign. They've provided some of the most valuable reporting," he says. "It might be hard to start taking aim at online discussion.