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