Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 3

December 9, 2010 — xanthippa

Disclaimer:  These are my observations, my opinions and I have no legal training at all.  So, take it for no more than it is!

Part 1 is here. Part 2 is here.

When I left the tale at the end of part 2, Mr Katz – Richard Warman’s lawyer – was making a presentation to Madam Justice Blishen that Mr. Warman’s request that Free Dominion hand over the IP addresses of the site’s members whom  Mr. Warman wishes to sue for defamation satisfies the 4 points set out by Justice Wilton-Siegel and, therefore, that FreeDominion should indeed hand over the info.

Context, Mr. Katz kept stressing, is essential.

He also expounded that this case is not about freedom of speech on the internet – it is only about defamatory statements made about his client!

Some of the defamatory statements were couched as ‘statements of opinion’.  And THIS is where Mr. Katz made one of several pronouncements which rather floored me.  This is probably because I am completely lacking in any law school stuff, so my mind must be insufficiently trained to ‘get’ it.

Please, judge for yourself!  (And, if you could explain it to me, I’d greatly appreciate it.)

Mr. Katz said that in order for something to be a ‘statement of opinion’, it must contain the information on the basis of which this opinion had been formed.

In other words, the statement:  “Lawyers are, in my opinion,  cute little bunnies.” would not, under Mr. Katz’s suggested definition, count as ‘statement of opinion’ because it does not say why I had arrived at this opinion!  By his definition, this is a ‘statement of fact’.

I sure hope I’m misunderstanding this, but this  sure is what I thought I heard – as I have written it down as such. (See – I’m supporting my opinion, just in case…)

Mr. Katz then went on for significant length to say that one of the things his client was called suggests ‘unnatural sex acts’.  I will, of course, not repeat the term itself because I do not wish to defame Mr. Warman, even indirectly!  Let it suffice that Mr. Katz explored at length the damage that could be done to one’s reputation by accusations of ‘unnatural sex acts’.  (Again,  I did not hear the word ‘unfounded’ or ‘false’ in there, but I am certain from Mr. Katz’s tone that this was implied.)

Mr. Katz belaboured this point until the judge began to show unmistakable signs of impatience.

At this point, Mr. Katz referred to the Vigna v Levant case, where (if I caught this bit correctly – my notes show I was not sure I heard this bit correctly) Mr. Levant was found guilty of defamation by calling someone ‘a censor’ on his blog.  Whatever the detail – someone was found guilty of defamation by calling someone else ‘a censor’ in a blog.

Mr. Warman had, apparently, been called ‘a censor’ by the defendants in this case.  This, according to Mr. Katz, constituted the ‘prima facie’ case for the defamation lawsuit to proceed, thus satisfying the ever-important Wilton-Siegel point #2.  (Again,  just because one person is defamed by being called ‘a censor’ does not mean the term is, in itself, defamatory.  The term is only defamatory if it is used falsely.  My best guess is that to get ‘prima facie’ ruling, the term has to be found defamatory in some instances while the actual defamation trial has to find that it is defamatory in THIS case.)

At this point. Mr. Katz recapped the 4 Wilton-Siegel points (not in order):

  • he had demonstrated point #2:  the ‘prima facie’ case for defamation
  • his client did all he could to ferret out the identity of the ‘John Does’ through other methods, satisfying point #3
  • he read into record the Free Dominion membership disclaimer, in order to demonstrate that if the members made defamatory statements on the site, they had lost their expectation of anonymity (and thus satisfying point #1)
  • balancing of ‘stuff’ for point #4….

Since Mr. Katz had not really addressed this bit before, he got to it in greater length at this point. In my imperfect understanding, the gist of his argument was that since Mr. Warman was a private citizen and not a public figure, calling him bad things is not part of public debate or political debate or any such related thingie.  It is nothing but defamation – not ‘free speech’, protected on any grounds whatsoever.

Therefore, Mr . Warman’s right to sue those defaming little bastards (I AM paraphrasing to reflect Mr. Katz’s tone of voice) trumps their weasely little ‘right to privacy’ and their identities ought to be handed over on a silver platter.  Like, yesterday.

At around this point, the York case was cited as precedent. Mr. Katz said this case was, to a great degree, based on the York case.  Again, my lack training in ‘the law’ is interfering with understanding:  I would have thought that the York case would not be something Mr. Katz would like to bring attention to, because (unless I am mistaken), the York case judge goes pretty far to stress: ‘Internet encourages free speech and anonymity is a critical component of this speech.’

But, back to Mr. Katz and his case: this is when Mr. Katz made the other statement that took the breath out of my lungs!

While trying to establish that Mr. Warman is a private citizen and not a public figure – and therefore the law does not protect criticism of him as ‘political speech’, Mr. Katz stated, with a straight face, in the most ‘everybody KNOWS this is so’ voice, that in order for someone to be a ‘public figure’, they have to be ‘AN ELECTED OFFICIAL ONLY’!!!

According to Mr. Katz, even Her Majesty, Queen Elisabeth II, would not qualify as a public figure!!!

Who would have thunk it…. our good Queen, not a ‘public figure’…  Tomorrow, it will have been 27 years ago that I swore my oath of allegiance to Queen Elisabeth II and all her heirs – as I enjoyed the privilege of becoming a Canadian Citizen!  I take my oath seriously – and this really, really offended me.

Of course, Mr. Katz did not mention that Mr. Warman did actually RUN for public office – he just failed to get elected.  I think.  Or, I could be mistaken.  I am not making any statement about Mr. Warman, whatsoever!

With this, Mr. Katz finished up.

….more to come….

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Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 2

December 9, 2010 — xanthippa

I have absolutely 0 legal training, so all these are simple observations and the conclusions and opinions are in no way expert.  I will do my best to be accurate, but these are all still nothing more than my personal observations and opinions.

Part 1 can be found here.

When I left off the tale, it was high noon and Madam Justice Blishen was listening to Mr. Katz, the lead counsel for Mr. Warman, present an argument why Mr. Christie, counsel not for Free Dominion but one of the co-defendants in the main defamation suit, has no standing at this hearing and should not be permitted to address the court.

This hearing was held solely to determine whether Richard Warman’s request that Connie and Mark Fournier, of Free Dominion, hand over the ip addresses which would reveal the identities of a number of Free Dominion members meets the 4 criteria, as set out by Justice Wilton-Siegel.  Mr. Katz argued that since that had nothing to do with the defamation itself, and since Mr. Christie was only representing clients in the defamation portion of the case, he has no standing before the court.

Mr. Christie eloquently argued that his client is being sued for defamation.  The second of the Wilton-Siegel points requires that Warman demonstrate that there is enough damaging ‘stuff’ there for a defamation lawsuit to go ahead ( establish a ‘prima facie’ case – this is to avoid ‘unjustified’ requests for identity disclosure).  If he can show that there is no ‘prima facie’ case – this second point – then there is no case against his client in the least!

Therefore, it is in his client’s interest that he address the court at this hearing.  (There was some specific word that was used in both Mr. Christie’s client’s case – so that was brought up and discussed, but to my untrained mind it seemed that the word itself was less important itself as it was only one of the ‘means’ to break the ‘prima facie’ point,)

Mr. Katz also pointed out that since Mr. Warman had arrived at a settlement with Mr. M– last Thursday, who had been Mr. Christie’s client, Mr. Christie has even less of a standing….

Mr. Christie pointed out that he is not there on behalf of Mr. Martin, but rather of Mr. B–.

In a most reasonable voice, Mr. Katz said yes, but Mr. Christie is trying to represent Mr. M.– here, and that has already been settled!

Mr. Katz truly does use his voice very, very effectively:  he conveys at least as much (if not more) meaning in the tone of his voice as he does in the words he speaks.  An excellent skill for a trial lawyer!  (My personal opinion is that without Mr. Katz’s expertize, Mr. Warman’s may lawsuits would never have gotten as far as they have…)

Of course, Mr. Christie could not be rattled that easily – and the judge ruled that since the rights of Mr. Christie’s client are going to be affected by any ruling here, she will permit Mr. Christie to address the court briefly after the other parties have made their main arguments.

Point one to Mr. Christie.

At this point, Mr. Katz complained that this is supposed to be a short hearing and now, so much of it had already been wasted by the above argument…

The man has some daring!  He was the one wasting the court’s time – now he complains about it, trying to shift the blame on to Mr. Christie!  And in such reasonable tones….  He truly is another Daniel Webster!  (The one from the story, not the Canadian lawyer…)

As he opened his main argument, Mr. Katz presented to the judge that the main aim of today’s hearing is to determine if there is a ‘prima facie’ case for Mr. Warman to proceed with his lawsuit.  (i.e. Wilton-Siegel point #2)

Point #3 – whether his client has done all he can to ferret out the identity of the anonymous posters on his own has been satisfied:  Ms. Kulaszka, the counsel representing Free Dominion, has conceded that this point has, indeed, been satisfied.

The judge pointed out that points #1 and 4 are also important. (#1 is whether or not the posters had a reasonable expectation of anonymity and the tricky one, #4 deals with weighing ‘public interest’, ‘freedom of speech’ and ‘right to privacy’)

Mr. Katz cited a precedent ruling set in Nova Scotia in June of 2010.  Unfortunately, even though I was aware of the ruling at the time, I cannot remember enough of the important details to find it, so I could link it.  (And, yes, I have spent a lot of time in cyberspace, sidetracking, while looking for this bit – so I have stopped in order to finish writing this up…)

Mr. Katz went on to argue that the specific libels against Mr. Warman are pretty clear.  He listed them.  For obvious reasons, I will not.  (In case you are not aware, it has been alleged that one of the defendants is being sued because he quoted Mr. Warman, from a deposition, where Mr. Warman complains about being called a list of names.  Apparently, repeating these – even when identified as a direct quote of Mr. Warman, could land one in a lot of hot water.)

Mr. Katz stressed that ‘context is important’ and addressed what he called the defendant’s position ‘that nobody takes bloggers seriously, so it is irrelevant if Mr. Warman is slandered in a blog…’.  (My imperfect understanding of the defendant’s position suggests that this is a re-phrasing-to-the-point-of-error of their position, but mine is not the legal mind.)  Of course people take bloggers seriously!

I think it is very nice that Mr. Katz thinks so highly of us!  I like him too!

Then he showed a legal ruling from the US that ‘it is defamatory to refer to someone as a Nazi’.

In my never humble opinion, that statement is clearly false.  Truth is always a defense.  Therefore, that statement could only hold water if it said:  ‘it is defamatory to FALSELY refer to someone as a Nazi’!

No, I am not making any inference as to Mr. Warman:  just because he had joined a number of Neo-Nazi sites does not necessarily mean he is a Nazi.

I am simply addressing the incorrectness of the statement itself:  in our country, truth still IS a defense!  In a real court, anyway…

Alas – I see the wordcount has climbed rather high… So, I will break for now and continue this tale in Part 3.

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