On Research in the Public Interest

July 26, 2016

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Categories: Reports and Briefings, Ron Deibert

A Statement from Professor Ronald Deibert

On January 20, 2016, Netsweeper Inc., a Canadian Internet filtering technology service provider, filed a defamation suit with the Ontario Superior Court of Justice. The University of Toronto and myself were named as the defendants. The lawsuit in question pertained to an October 2015 report of the Citizen Lab, “Information Controls during Military Operations: The case of Yemen during the 2015 political and armed conflict,” and related comments to the media. Netsweeper sought $3,000,000.00 in general damages; $500,000.00 in aggravated damages; and an “unascertained” amount for “special damages.”

On April 25, 2016, Netsweeper discontinued its claim in its entirety.

Between January 20, 2016 and today, we chose not to speak publicly about the lawsuit. Instead, we spent time preparing our statement of defence and other aspects of what we anticipated would be full legal proceedings.

Now that the claim has been discontinued it is a good opportunity to take stock of what happened, and make some general observations about the experience.

It should be pointed out that this is not the first time a company has contemplated legal action regarding the work of the Citizen Lab. Based on emails posted to Wikileaks from a breach of the company servers, we know that the Italian spyware vendor, Hacking Team, communicated with a law firm to evaluate whether to “hit [Citizen Lab] hard.” However, it is the first time that a company has gone so far as to begin litigation proceedings. I suspect it will not be the last.

Fortunately, Ontario has recognized the importance of protecting and encouraging speech on matters of public interest. Canada has historically proven a plaintiff-friendly environment for defamation cases. But, on November 3, 2015, the legal landscape shifted in Ontario when a new law called the Protection of Public Participation Act (PPPA) came into force. It was specifically designed to mitigate against “strategic litigation against public participation,” or SLAPP suits. The Act enumerates its purposes as:

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Under the Act, a judge may dismiss a defamation proceeding if “the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.” The Act allows for recovery of costs, and if, “in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.”

In our view, the work of Citizen Lab to carefully document practices of Internet censorship, surveillance, and targeted digital attacks is precisely the sort of activity recognized as meriting special protection under the PPPA. Had our proceedings gone forward, we intended to exercise our rights under the Act and move to dismiss Netsw­eeper’s action.

Regardless of the status of the suit, we strenuously disagree with the claims made by Netsweeper, and stand firm in the conviction that my remarks to the media, and the report itself, are both clearly responsible communications on matters of public interest and fair comment as defined by the law.

One point bears underscoring: it is an indisputable fact that Citizen Lab tried to obtain and report Netsweeper’s side of the story. Indeed, we have always welcomed company engagement with us and the public at large in frank dialogue about issues of business and human rights. We sent a letter by email directly to Netsweeper on October 9, 2015. In that letter we informed Netsweeper of our findings, and presented a list of questions. We noted: “We plan to publish a report reflecting our research on October 20, 2015. We would appreciate a response to this letter from your company as soon as possible, which we commit to publish in full alongside our research report.”

Netsweeper never replied.

We expect that Citizen Lab research will continue to generate strong reaction from companies and other stakeholders that are the focus of our reports. The best way we can mitigate legal and other risk is to continue to do what we are doing: careful, responsible, peer-reviewed, evidence-based research. We will continue to investigate Netsweeper and other companies implicated in Internet censorship and surveillance, and we will continue to give those companies a chance to respond to our findings, and publish their responses, alongside our reports.

I come away from this experience profoundly appreciative of the skills of my staff and colleagues, and in particular Jakub Dalek, Sarah McKune, and Adam Senft, who assisted in the legal preparations.

Lastly, I am grateful to the University of Toronto for their support throughout this process. With corporate involvement in academia seemingly everywhere these days, it is tempting to get cynical about universities, and wonder whether corporate pressures will make university administrators lose sight of their core mission and purpose. After the experiences of the last few months, I feel optimistic about the possibilities of speaking truth to power with the protection of academic freedom that the University of Toronto has provided me.

Meanwhile, back to work on another Citizen Lab report.

 

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