Table of Contents
- Sites Like www.ihaterogers.ca
- Web Site Posters
- Web Site Hosts
- Editorial Detachment
- Readers’ Tendencies
- Controlling the Forum
- The Whole Story
- Asymmetries of Force
- Humble Resources
- Consent to Critique
Sites Like www.ihaterogers.caBack to Top
There are intriguing legal, political, and journalistic implications that arise around the topic of posted comments on the internet. By posted comments, I am referring to a range of forums, from chat rooms, blogs, and web sites like www.ihaterogers.ca, to the on-line feedback sections of the internet version of print media.
The first set of issues that arises is the potential for liability deriving from defamation, specifically libel - an action in tort arising from the publication of false statements that damage a plaintiff's reputation. I will return to the broader political and journalistic issues below.
There are two potential defendants in the case of on-line libel: the person who posts the comments and the person who hosts the comments. While the issues for both parties are interesting, the issues relating to the host of the sight are exceptionally intriguing.
Let me first offer an opinion about the exposure to liability for those who post comments on another person's web site.
Web Site PosterBack to Top
Just as people who print material that is defamatory expose themselves to libel, so the law has begun to establish that those who disseminate defamatory material on-line are also liable for the damages they cause.
The truth is effectively an absolute defence to an action in libel. The vulnerability of posters can be protected by the truthful content of their submissions. And there is further protection in the doctrine of fair comment. If the figure discussed is a public one, and there is a well founded public interest in the information being shared, then as long as the opinions disseminated are honestly held, regardless of the outlandishness of the content, the poster has good reason to believe they are on a secure legal footing.
This kind of analysis is projected from the doctrine on libel as it relates to the print world and for the most part, the analysis is applicable on the world wide web.
However, the whole area of law holding people legally accountable for libel for on-line comments is new, and there is very little case law that has settled the law on this issue. As always, freedom of speech is the countervailing value to the protection of a person's reputation, and the overall context of the internet may well generate a legal balance between these two rights that is distinctive in unpredictable ways.
And as always in law, that a poster is protected in law by the truth can be wholly irrelevant if the poster has to defend him or herself against a powerfully resourced plaintiff. Litigation fatigue will wear out the most righteous of defendants if they have to pillage and plunder their resources to fend off the most hollow of self-righteous and well-resourced corporations. And the vast majority of ordinary bloggers and posters will be daunted by the bluster of legalese that deeper pockets can generate, leaving only the most resourced of outlets to boldly offer commentary on the truth.
Web Site HostsBack to Top
The legal position of web site hosts is the area of law that is extraordinarily unsettled and has fascinating implications for blogs and web-sites that invite, host, or even link to comment from others. It also has implications for news outlets (like the Globe and Mail for example) that invite on-line "feedback" from readers. It has implications for the relationship between print media and the internet. And it has important implications for freedom of the press and freedom of speech.
The example of this web site is a good case in point for many of these issues.
If I were to post people's comments about their experiences with Rogers and if some of those comments were false and damaged Rogers' reputation, am I liable for defamation for publishing those comments? Am I in fact a "publisher"?
I have so far posted a disclaimer on top of the "Consumer Experiences" section that states that the comments to be eventually found in that section are not to be attributed to me. I have further added a disclaimer to the "Post a Comment" section that stipulates that by sending the statement, the sender assumes responsibility for the veracity of the statement (standard protection against libel) and for the honesty of their opinion (the criteria to be met for fair comment).
I cannot verify the statements of all of the comments that are submitted. This is not only a question of resources, but also a question of the impossibility of certifying that a consumer had the experience with Rogers that they said they had. I have therefore substituted an impossible undertaking (verifying each statement) with an alternative (and more practicable) approach to due diligence.
Does this quasi-contract between the poster and me suffice as due diligence on my part to protect me from a suit of libel for "publishing" the statement?
The Supreme Court case of Cherneskey v. Armadale Publishers Ltd. illustrates that even an established newspaper can be held liable for the libelous letters to the editor that it publishes. In that 1979 case, two law students published letters to the editor of Saskatoon's Star-Phoenix paper which were found to be libelous in nature. The law students were not sued, nor were they called as witnesses, so no evidence as to their honest beliefs was presented. The paper, along with the owner and publisher of the Star-Phoenix, Armadale Publishers, stressed that they did not agree with the law student's opinion and argued that they were entitled to enter the defence of fair comment to the jury as they earnestly believed the letter reflected the law students' honest opinion. However the fair comment defence was unavailable to them, the judgment indicates, in part because the publisher did not agree with the opinion of the letter writers and so held no honest belief coincident with the published content.
In the more recent decision of Botiuk, a Ukranian community newspaper owned by Toronto Free Press Publications Ltd printed a story claiming that a lawyer within the Ukranian community had declined to return funds to the community as per a supposed commitment. The publisher was successfully sued for libel because "the whole story was not told and as a result misstatements of fact about the [respondent] were published"
If a newspaper is not protected from liability for defamatory statements in its letters to the editor and is not protected by fair comment when they fail to canvas the "whole story", then how much more vulnerable are the hosts of internet comments and blogs?
Editorial DetachmentBack to Top
Part of the reason that print publications are vulnerable to liability for defamation is the assumption that the print media exercise editorial discretion and control over the content. The entire content is, in a sense, pervasively branded with the publication's good name. Of the myriad of letters received, editorial discretion colors the final selection. But the assumption about editorial branding of submitted content has loosened somewhat in the intersection of print media and on-line commentary.
There is some speculation (the law has not even begun to percolate on this matter, let alone settle) that if the host exercises a degree of detachment from editorial oversight, then there will be a commensurate degree of immunity from libel for the poster's submissions.
While the traditional letter to the editor section of print media reflects more closely (through the editorial process) the tone and tenor of the paper that publishes them, on-line newspapers appear to have attenuated this control. In light of how unsettled the law is on the issue of on-line postings, this manoeuvre appears consistent with a stance on libel that shifts the balance of liability to the poster. Those who post, goes the speculation, are the publishers of their comments, not the paper. This is one of the reasons why on-line news sources that solicit feedback do not edit the comments as closely as they do for print letters.
So, for example, while letters to the print version of the Globe and Mail require a name, address, and daytime phone number and can be edited for clarity and length, online comments, while read and approved, are checked for content only, with no correction of spelling or grammar. The claim is made that libellous content will be rejected. However the loosening of editorial control makes that emphatic assertion somewhat more tenuous than it might appear. While the sense is generated that posters have more fulsome control over their submissions, ironically this lack of editorial oversight increases the likelihood that defamatory (or otherwise illegal) comments will be disseminated.
Alternatively, the influence of such submissions is also circumscribed by the more free-wheeling context that they inhabit. The grain of salt with which a reasonable person would take them is quite apparently larger as a result. The way that internet content in general is generated and read has produced lower expectations for the veracity of what can be found therein.
An interesting example of this comes to mind regarding the feedback section of one of Israel's daily newspapers, Ha'aretz. One regular feedback writer signs his name to his correspondence, breaking the more typical pattern of anonymous contribution. His comments tend to be left leaning and sympathetic to Palestinians. Recently, somebody has started to post comments under his name that clearly go against the grain of his political proclivities. He has started to object in the talkback section to this "impersonation" (which, rather humorously, has led to his imposters objecting to his prior comments about impersonation, imputing, in his name, the same offence to his prior postings.)
The newspaper itself has, to my knowledge, refrained from intervening, one surmises in part because of a stance on liability for defamatory content. Indeed Ha'aretz makes clear in their Talkback Disclaimer that submissions are made on the reader's own behalf and the content is the sole responsibility of the user. It is the user who guarantees that his or her content does not contain material constitutive of libel (or any other illegal content). There appears to be effectively no moderator of the paper's feedback section. There appear to be no "privileged" letters. None of the content "comes with its papers" so to speak.
As a result of this editorial detachment, Ha'aretz readers have greater editorial control over what they focus upon or summarily dismiss from their reading attention when they read over talk back submissions. They determine for themselves (if they can slog through the dense jungle of piffling commentary) what is incisive and insightful. There is no verification of the content of those who submit comments. Nothing need be sourced. There is no requirement, even, that comments be submitted with people's legitimate names attached - and the immediacy of on-line posting to some extent facilitates such potential duplicity. The reader's critical faculties are more actively engaged - and perhaps ultimately undermined as gossip, unsubstantiated opinion and rumour run amok.
This, of course, erodes confidence in the talkback service that originally stemmed from the section appearing under the newspaper's banner. And the conversation degenerates in the same way that it does on any other blog without the credibility of Ha'aretz, for example, refining the content.
The unfiltered banality of the bulk of Ha'aretz' on-line feedback commentary does not diminish its importance as a gage of the "newsworthiness" of the story however. Last year I interviewed the publisher of Ha'aretz about an extraordinarily controversial throwaway paragraph that he wrote in an otherwise relatively sedate editorial. He took as a measure of the centrality of the issue to the Israeli imagination (the issue was mixed marriage) that his brief opinion elicited the largest number of talk back responses of any other article in the history of the Ha'aretz on-line feedback service.
That free-wheeling liberation and degeneration of content - its populism and radical democracy, its reliance upon constraints that arise through custom and informal social control rather than monopolies of centralized oversight - is, in a nutshell, the blight and the blessing of the internet. And the Globe and other print media are, no doubt, aware that they now must compete with this newfound ability of the reader and subject to write his or her own story and to break his or her news.
The issues raised above can be seen in the on-line feedback section of the very Globe and Mail articles that carried the story of my debacle with Rogers. The Globe opened up Peter Cheney's articles on-line for feedback. A substantial number of readers submitted comments. Indeed the articles also spawned independent blogs on various dimensions of the story around the world.
There are differences between the on-line reader feedback sections of Ha'aretz and the Globe and Mail, but there are also similarities, most particularly in the tendency toward editorial detachment. I will return to the similarities in a moment, but first I want to address the differences.
Readers’ TendenciesBack to Top
There are some subtle, but recurring, distinctions between the feedback material to be found on a Ha'aretz site or on a Globe and Mail site. (I confine myself to these two papers not only because of a familiarity with them, but because of a larger and tangentially related research project in which I am otherwise engaged. I assume it would not be difficult to decipher the ethos of a range of on-line feedback services.)
In the first place, there is a distinct tone, or inflection, to the respective feedback environments of each paper that cannot be attributed to the "quality" of each paper. Both papers occupy roughly the same high brow status on a range of respective national newspapers. The environment of a Ha'aretz feedback section tends to be more rancorous, with opinions voiced as though each shored up a more fraught sensibility. The tenor of the Globe's feedback environment tends to be more genteel. Both papers edit for vulgarities and profanities so the intensity or congeniality of opinion expressed does not derive from an association with other locales where people congregate.
The kinds of comments that Ha'aretz does exclude, however, reflect the pre-occupation of readers of that particular paper (who submit from around the world). Ha'aretz will not post statements terming Israelis or Palestinians and their leaders Nazis, or accusing them of genocide or ethnic cleansing; will not post statements which may be construed as urging attacks on Israeli or Palestinian leaders, officials, security forces or civilians; and will not post comments of an anti-Semitic, anti-Muslim, anti-Arab or other racist nature. This policy is explicit.
Although this does indicate a fairly clear policy of editorial control, this particular list of exclusions would not appear on the guidelines for publication of the Globe and Mail's on-line comment service. The Globe only deflects tendencies to vulgarity in its readers (and also claims to reject libellous content - a claim discussed below). If the Globe does honour a similar "code of acceptable content", the code is informal and implicit. This reflects not just differences in editorial policy, but the preoccupations of the respective readers of each paper. Apparently the tone or ethos of each on-line comment section is not just set by each newspaper, but is structured by the preoccupations and tendencies that readers tend to bring to each paper.
Although readers might pick up a distinct tonal difference between the on-line feedback sections of Ha'aretz and the Globe and Mail (one more rancorous, the other more genteel), both papers manifest the same tendency for looser editorial control over on-line forums.
Controlling the ForumBack to Top
The attenuation of editorial control of the Globe's on-line content can be seen running through the comments to Peter Cheney's articles. In some cases, full names are withheld, in others a pseudonym has clearly been used, in yet others the writer's location is withheld. In fact I found myself in good company in speculating whether a few of the postings might not have been submitted by posters with connections to Rogers, something that the relative permanency of print, with a requirement for full name, phone number, and address, renders less likely.
It's not difficult to see how someone could submit false and damaging content under these circumstances and the Globe, according to Botiuk and Cherneskey at least, might find little relief under the fair comment defence. If, however, the Globe is not the publisher of those comments, but merely the host for them, the looser relationship between the editor and the poster in the on-line realm (reinforced, perhaps, by common expectations in the realm of on-line submissions), might also loosen the sense that the Globe's good name is written all over them.
The issue of a newspaper's potential liability for the content of readers' submissions brings me back to the question of liability for web sites that host readers' submissions.
What if Rogers had flooded the Globe's feedback section under Peter Cheney's articles with warm feelings for Rogers Wireless? Does the Globe find itself susceptible to becoming a shell for corporations (or any other lobby) that want to use such a forum for free advertising and promotion? With the attenuation of editorial control over the on-line submissions (for example in the form of a requirement for full names to accompany submissions) the entire tenor of the feedback content appears slightly compromised and suspect - and in one sense, also more democratic; open to a free market of opinion and commentary.
On the flip side, is it the Globe and Mail's responsibility to ensure that nothing unduly negative is said about a corporation in a feedback section? Does the media have to guard a corporation like Rogers against the vagaries of public and consumer opinion by vetting every posting for veracity and the honesty of the opinion? This web site is illustrative of the conundrum.
The Whole StoryBack to Top
The Botiuk case, mentioned above, holds the newspaper that printed problematic letters to the editor liable because it did not tell "the whole story" and as a result "misstatements of fact about the respondent were published". In the case of this web site (and, I believe, in the case of the Globe's feedback section on the Rogers story), it cannot be reasonable to expect me to pursue the "whole story" surrounding the experiences of consumers. In the first place, that would make me beholden to Rogers for the provision of comments about each consumer's story. This would go completely against the grain of opening a forum focused on consumer travails and recommendations, and also holds me hostage to Rogers' schedule and inclination to provide feedback.
Perhaps it is fair to open a space on the site for Rogers to provide their own comment, fairer still to solicit such feedback. But should the mandate of web sites (or on-line feedback sections of print media) be so narrowly confined that, for example, corporations retain a right to respond to each and every comment? Corporations like Rogers have extraordinary budgets for advertising and for their public relations department. Is it really necessary to "level the playing field" by entitling Rogers to vet every submission for its veracity, and to fill in its construction of the "whole story"? Or is this a simple-minded understanding of symmetry and balance?
Asymmetries of ForceBack to Top
The overwhelming resources of a corporation like Rogers highlight another stark asymmetry between the power of ordinary consumers to propagate their version of the truth and the capacity of the corporation to maintain an iron grip on whatever gets said about it.
I intimated in the section about posters' liability that the righteousness of his or her cause is, in many ways, irrelevant to the final outcome. By final outcome, I don't mean the final judgment in a court of law. As it stands, the law is quite unsettled in this area and the odds appear to be fair between Rogers and the consumer on strictly legal grounds. A court would need to balance between the right to free speech and fair comment, and the right to protection from defamation. And the case law on this issue in Canada is sufficiently inchoate, the legislation sufficiently thin, and the jurisprudence from abroad sufficiently conflicted that predicting the balance that a court would strike on the merits is almost a crapshoot. Considering only the formal law on its merits, the odds are certainly not terrible for a blogger, web poster, or web host. On the merits, they aren't so bad for a corporation like Rogers either.
But it's not the final outcome in a court of law that I am referring to when I say that the righteousness of the cause, or its foundation in the formal law, is irrelevant. I mean righteousness is irrelevant to the final outcome in the matter of who says what, and how, when, and where - long before the intervention of an official court.
If an ordinary consumer goes up against a juggernaut like Rogers, and if Rogers feels that its interests are sufficiently compromised, the probability of legal action ever reaching a court, let alone an authoritative court like the Supreme Court of Canada, is close to non-existent. Rogers has the legal resources to rapidly deplete all reserves, moral and pecuniary, of the ordinary consumer in a legal battle.
Before getting to the capacity of Rogers to silence the voice of consumers, let me first talk about the buzz of consumer voices on the internet.
BuzzBack to Top
Take, as an example, the case of the host of the web site www.ihaterogers.ca. One suspects that the site remains up because it is insufficiently trafficked for Rogers to bother to bring an action to close it down. The ranking parameters of Google more or less control the site's prominence on the world wide web; and those parameters are ultimately facilitated by the humble old work of word of mouth, gossip, and rumour. Somewhat paradoxically, given the way that Google works the more well-known a web site, the more well-known it will likely become.
It is worth pointing out first that the rank of a web site on Google is not tied to how much money can be thrown at it. As Google notes, in the context of targeted keywords, "advertising with Google neither helps nor hurts your site's ranking in our search results." The formidable advertising resources of Rogers Communications Inc, in other words, hypothetically provide no more lubrication of the Google machinery than a People's Choice selection would. Some other kind of compulsion, other than money, has to operate to put a site about Rogers above Rogers itself on Google's ranked list.
Google provides a brief statement about the algorithms that it uses to rank pages. The importance of web pages is determined by, amongst other things, a popular vote for a page as determined by how many other sites link to that page. This value is weighed in conjunction with the "importance" of each page that makes a vote for a particular site. (See http://www.google.ca/webmasters/4.html for a more detailed presentation of the Google ranking system.)
In other words, a site like www.ihaterogers.ca could hypothetically rise to a higher ranking than Rogers if a greater multitude of other sites linked to it, and a greater multitude of "important" web sites linked to it.
Like Paris Hilton, then, a site can become famous for being famous.
A little less like Paris Hilton, a site can become deservedly famous (and reach the upper echelons of ranking) by being linked by other sites that are supposedly worthy of their reputation. To put it in different terms, being linked by the equivalent of the National Enquirer won't count for as much as being linked by the equivalent of Vanity Fair.
As a scholar, I feel compelled to note that being linked by "important" web sites is not the same as being linked by "authoritative" web sites. Paris Hilton will turn up at the bottom of virtually any ranking in Google Scholar, if she turns up at all.
However, it must be said that the Google Scholar algorithm also mimics to a large extent the real world of academia: "important" scholars and works are determined by how many others link to them (cite them in the dusty old world of libraries). This is not unequivocally how academic work is determined to be "authoritative" (or, in the lingo of the academy "seminal"), but it's not far off either.
Of further interest for both the internet (and academia) is a third ranking parameter that Google employs in its search engine. Given that site publishers can manipulate meta-tags, introducing an abundance of superficial and well-trafficked terms that would ordinarily provide them with greater coverage, Google also analyzes the content of neighbouring web pages to ensure that the meaning that a user might be searching for is more likely to be found, not simply the empty terms that carry false promise of such meaning.
For example, those internet users who want the latest dirt on Paris Hilton would likely be disappointed by this web site - which cites Paris Hilton's name eight times and which could conceivably have enough other "importance" that when the Google robots crawl the web for Paris Hilton, they unearth this site. Google's hypertext matching analysis reads the name "Paris Hilton" in the context of a web site about Rogers, and ranks it lower on those web sites devoted to her name - thereby decreasing the frustration levels of the fans of Paris Hilton.
So just as the absence of references to an inscrutable French sociologist should not thereby render an academic article less "au courant" than one that is riddled with them, so an abundance of popular meta-tags should not send a web site to the top of the Google ranks. The character of the web site, in other words, counts.
All of this is the nebulous and intangible - and yet without a doubt compelling - world of custom.
For a legal anthropologist, this realm of who says what, and how - and who listens and to what effect - is the world of customary law, from "remote" Inuit communities to the transnational corporate world. Reputation may provide a wider berth for manipulation of the rules and expectations of the community (in short, its formal laws). And reputation can manipulate community rules and expectations for the better or for the worse.
Character, however, may trump reputation.
To bring this back to the www.ihaterogers.ca web site, the relative paucity of links to that site means that www.ihaterogers.ca is not at the top of the list of links that Google spews out when "Rogers" is entered into Google's field. And, of course, its lack of presence on Google means it will be less frequently visited.
Currently, people tend to find the site by word of mouth, and by virtue of it being a linked page on other web sites. I found the site when I was desperately combing the internet to find some relief in my own battle against Rogers, plugging in increasingly complex ranges of search chains. The dense and nuanced world of gossip as a form of social control within "close knit" communities (familiar to legal anthropologists) is kissing cousin to the dynamics of web site "buzz".
There are other interesting things to say about a web site like www.ihaterogers.ca and how it interacts with the law and how manipulation of the law can have an effect on both buzz - and silence.
SilenceBack to Top
The www.ihaterogers.ca web site has a legal disclaimer, disowning responsibility for the rants posted on the site. By contrast, the Globe and Mail does not post a disclaimer stating that the opinions of the contributors to the on-line feedback section cannot be attributed to the Globe and Mail. This is partly because the Globe's legal department has the same awareness of the vulnerability of disclaimer clauses as have all lawyers. A contractual or quasi-contractual arrangement between a poster and the host will not bind third parties from suing a host for defamation. And merely stating one is neither responsible nor liable for defamatory content does not immunize one from a successful libel suit. Canadian cases such as Cherneskey and Botiuk, discussed above, appear to assign ultimate liability to newspapers for the content of readers' submissions - at least in their print version. Presumably there are no such cases in Israel, which allows Ha'aretz to more emphatically state that liability for libel, and other illegal content, lies with the person who submits a comment.
A further distinction between the two internet sites is that while the Globe exercises editorial distance, the host of the www.ihaterogers.ca site appears to be quite liberal with his or her interventions.
The situation is somewhat paradoxical. A corporation like Rogers would be far more likely to pursue another corporation with relatively deep pockets (like the Globe and Mail) than go after the relatively humble resources (one assumes) of those who submit on-line comments to the Globe (not infrequently anonymously). And a corporation like Rogers would also be more likely to sue the Globe and Mail than the host of www.ihaterogers.ca because of the wideness and credibility of its distribution which leaves the Globe poised to cause more damage by the scope of its effectiveness.
Yet the Globe and Mail has opted to exercise less editorial control and by-pass the device of a disclaimer of liability, unlike the host of www.ihaterogers.ca. It is a fair bet that the legal department of the Globe and Mail is better and resourced and informed with respect to its liability from defamation than the host of www.ihaterogers.ca and that the difference in options pursued stems from the Globe's more refined opinion about the nature of the gamble in this area of law.
But if www.ihaterogers.ca did generate increasing buzz around it, allowing it to compete, for example, for the attention of readers of the Globe and Mail, then it would also raise the stake of damage for a corporation like Rogers. The ihaterogeres.ca web site stands for bold imperviousness to the ire of the Rogers boogey man. It endorses the venting of consumer spleen as one of its paramount (and I have to say understandable) thrusts, posting "rants" of the kind to which I too have often fallen prey after yet another interminable and fruitless phone conversation with Rogers' customer service department.
And yet it appears that the more successful and contagious the web site's message, signifying to some extent the validity and informal "newsworthiness" of its content, the more vulnerable it becomes to Rogers' capacity to snuff it out in order to shore up whatever consumer confidence and market share the site might have eroded. While Rogers is fully poised to swoop down upon the site as soon as it appears fat enough or annoying enough to devour, the host would be unlikely to have sufficient resources to fend off even the beginnings of a legal assault. The least rational of maximizers would capitulate, in all likelihood sooner than later.
While self-censorship might well be a virtue for the smooth and respectful operation of civil society, it cannot be a virtue when it is driven primarily by fear. A juggernaut like Rogers appears to have extraordinary power to silence public complaint and commentary about the corporation. Thereby its reach and power has greater capacity to grow. This capacity to silence and erase is compounded by a spattering of American case law that holds liable even those who provide links to a defamatory web site. The overall climate threatens to become very chilly indeed.
These massive asymmetries of power between the voice of the ordinary consumer and the voice of a corporation like Rogers would surely intimate that a court should tip the balance in the favor of free speech. And yet it is almost completely unsettled how "the law" (common law in this case, in light of the paucity of Canadian legislation on point) will shape the predictability of outcomes on these matters. Personally, I don't really want to be the test case.
In the meantime, the court of public opinion competes with the formal justice system just as the internet competes with the legitimacy of print media for the production of "news" and the fidelity of readers.
Humble ResourcesBack to Top
Rogers would be unlikely to pursue a person of relatively humble means who submitted a comment to a blog or hosted a web site; Unless Rogers had a stake in using the law as a form of discipline.
And that brings me to me.
While the ordinary web host might draw less attention than a law professor whose story hit the front page of the national news several days running, that anonymity makes them small enough fry for Rogers to overlook. The very media attention that prompted Ted Rogers to call me on my cell phone and personally apologize to me on the day that Peter Cheney's article came out in the Globe and Mail is the same reason that I would be more vulnerable to even the most frivolous of suits from Rogers Communications Inc. And although it may appear that I have ample legal resources to match whatever Rogers' financial resources can buy, this is not quite an accurate picture.
First of all, every first year contracts student knows that the moment they sit down for their first class, they will be less able to plead unconscionability - unlike those unschooled in law who find themselves up against an offensive clause in a standard form contract where the print was small, the ordinary person would not understand what he or she signing, and the asymmetry between corporation and consumer was large. Those with legal training are presumed to be able to understand the contract, even if they can neither negotiate nor change one iota of it.
Presumed informed, the lawyer's only other choice is to walk away from a scandal of a contract; a puny choice indeed in a small field of competitors, most of whom have similarly problematic contractual clauses.
Paradoxically then, while our legal expertise allows us to draw upon a broader range of legal principles and tactics, our recourses are correspondingly narrowed. We are compelled to rely more upon the humble resources of our wits, as well as upon our membership in a community of people with similar or analogous skills. My colleagues in the Canadian legal academy have been extraordinarily helpful in this regard, as have been two friends and former students. And Harry Gefen's journalistic coup is further case in point.
Although we might swiftly take in a simultaneously broad and highly focused view of the legal horizon on a particular issue, our station means we have to be more adroit at exploiting those less conspicuous resources that are hidden within it. Ambrose Bierce's definition of a lawyer as one skilled in circumvention of the law is particularly apt.
A legal anthropologist might call those practices and resources, and the outcomes they generate, informal or customary law.
Consent to CritiqueBack to Top
I suppose I could ask Mr. Rogers if his corporation would contractually commit to forfeit litigation rights arising out of the posting of comments to this site. Consideration for this agreement would be an opportunity for Rogers to renew good will; to offer a more genuine concern for improving customer service in response to unconstrained consumer feedback.
I read Mr. Rogers' statement cynically when he wrote to me that "the customer perspective is important to the continuous improvement of our operations"; and read his statement that "I am keen to meet with you, either in person at our offices or over the phone, so that I can listen to your experiences and learn from them" as fatuous and condescending, as it was surely intended to be. And I always read the ghost writer of Rogers' Vice President of Communications in every letter that the elusive Ted Rogers signed.
Although that I am ultimately irrelevant to both Rogers (and to a broader audience), I can intuit that the lasting impression of the hollowness of the Rogers shell must also be somewhat damaging to Rogers' reputation. The hundreds of emails that I received after the story broke in the Globe and Mail confirm unequivocally for me that consumers apprehend quite acutely the poverty of human contact and empathy behind Rogers Communications Inc.
Apart from the virtual certainty that Rogers' legal department would be disinclined to graciously pull all of its punches on the right to sue a Rogers forum over which it has absolutely no control, the proposal to seek a dispensation from Rogers has, in any event, an inherent lack of appeal.
In the first event such noblesse oblige would not be granted to the less notable consumer, which defeats the populist and democratic spirit of internet critique.
And it embodies a capitulation to Rogers' capacity to control the thermostat in the court of public opinion, reinforcing its ultimate capacity to generate chill. This is the conundrum of this web site.