Free Dominion wins the Baglow case!



This is most excellent news!  And – most enjoyable reading…

Last month, I reported my observations and opinions (strictly personal ones) of the hearing for summary judgment in the ‘Baglow case’:  here are part 1 and part 2.

Quick recap:  John Baglow and ‘Peter O’Donnel’ got into a heated debate online which spanned several blogs and the Free Dominion discussion forum on the topic of Omar Khadr, his trial and whether or not supporting Omar Khadr constitutes ‘supporting the Taliban’.

John Baglow then tried to sue ‘Peter O’Donnel’ and Free Dominion for defamation:  ‘Peter O’Donnel’ for what he said and Free Dominion for being the forum in which he said it.  (‘Published it’ would be a more accurate term – but ‘said’ just rolls off the keyboard so much more easily!)

Today, the ruling in the case came in:  the case has been dismissed.

Here are a few quotes from the ruling which I found most interesting:

[70] Bringing an action on the comment in mid-debate runs contrary to the rules and has the
effect of chilling discussion. If allowed, it places the opposing party in a defensive mode, rather
than an offensive one, strategically putting that party at a disadvantage.

[71] This was all the more so where the blog is used to aggressively berate the other side,
score points employing colourful derogatory characterizations, e.g. the plaintiff calling the
defendant Comrie Fournier the “Free Dominatrix” or referring to the opposition as “yokels with
pitchforks”, or to undermine their logic and indeed their standing by superior debating skills.

* * *

[84] In any event, the plaintiff largely contradicts his view of the evidentiary basis that the
Court should use to judge this matter. He describes the foundation for his own contemptuous
views towards the defendants as follows:

With respect to paragraph 7, I do not deny that the Defendants and I are
ideological adversaries and opponents in the blogosphere. I do not know the
defendants personally, and so my derision, scorn and contempt for them. can only
be for their opinions and actions as evidenced by their postings.

[85] I am in agreement with the plaintiffs statement, which should have mutual application to
all parties engaged in this political debate. There is nothing in the blogging threads which would
suggest that there was any personal or inherent express malice on the part of the defendants
directed at the plaintiff, as opposed to the mutual contempt of the parties for each other’s
opinions and actions as evidenced by their postings.

[86] The defendants would be entitled to rely upon the defence of fair comment should their
statement be found to be defamatory.

The way I understand these words, the judge is saying that when one starts to loose in an online debate, running to the courts to sue the other side is not an appropriate course of action.  And, if it is OK for YOU to call somebody names, it is OK for THEM to call you bad names as well…

OK – I that was the sweetest bit in the ruling – in my personal opinion.

Here are some other bits that caught my eye:

  • The statement by ‘Peter O’Donnel’ were statement of opinion during an ongoing debate

[40] Instead, I conclude that the opinion expressed by the defendant lies at the heart of the
debate between the factions represented by the. parties and whether the underlying facts are true
or not, readers following the blog would understand the comment as being one side of the debate.

  • Just because somebody calls you a name does not mean people believe it

[54] The fact that the parties are engaged in ongoing debate over what it means to support the
Taliban is recognized in the plaintiffs attempt to explain the distinction between his situation and
that when the late Jack Layton, former leader of the NDP) was described as “Taliban Jack”.

Secondly, the handle “Taliban Jack” does not necessarily imply conscious
support, but rather suggests giving an unintentional and unplanned advantage to
the Taliban. I respectfully submit the words spoken by Mr. Smith cannot be given
such an interpretation and imply conscious support for a political group at war
with Canadian Forces. [Emphasis added]

[55] I frankly fail to see the distinction in not implying “conscious support” when applied to
“Taliban Jack” giving an advantage to the Taliban and to the statement that the plaintiff is a
vocal supporter of the Taliban.

[56] But more importantly, the plaintiff’s comment is understood as being part of the ongoing
debate between the two factions represented by the parties’ views. No reasonably informed
Canadian would conclude that Mr. Layton was defamed by being called Taliban Jack,
understanding that this was simply a catchy label attached to him by conservatives to showcase
what they consider the weakness of the liberal argument in this political debate.

[57] Reasonably informed readers of these blogs would understand labelling the plaintiff a
supporter of the Taliban as performing the same function and would not consider the comro.ent
capable of lessening the reputation of the plaintiff.

  • Here is a bit that refes specifically to blogging

[59] nternet blogging is a fonn of public conversation. By the back and forth character it
provides an opportunity for each party to respond to disparaging comments before the same
audience in ‘an immediate or a relatively contemporaneous time frame.

[60] This distinguishes the context of blogging from other forms of publication of defamatory
statements. One exception couId be the live debate, of which blogging constitutes the modem
written form.

[61] I am not suggesting that defamation can never occur in a live debate. I do say however,
that the live debate forum should be considered as a contextual factor 10 determine whether the
statement is defamatory in so far as whether it is complete.

[62] An example that does not in any manner reflect the Court’s views on these issues, but
wbich might serve to explain how derogatory, even defamatory remarks are expected to be
parried in a live debate so as to remove the “sting of the libel” and attenuate any threats of
diminution of reputation might be as follows:

Mr. Smith knows full well that I abhor what the Taliban stand for. His calling me
one of their supporters because I think they should be entitled to due process in
accordance with lntemationallaw would be like me calling him (some derogatory
descriptor, e.g. “a Nazi fascist”) because he wants to trample the rights that’
Canadians cherish, etc. [Example provided by the Court]

[63] Given that the plaintiff pleads his belief that “there is a reasonable likelihood of damage
to my repumtion if it became generally believed that I supported the enemies of the
Canadian Forces”, it seems that the tendency of the comment to lower his :reputation, particularly
when arising in the form of a comment in a debate, could have been quickly nipped in the bud by
a simple rejoinder in the fashjon described above. This would have had the additional benefit of
allowing him. to score some points of bis own.

There are other really interesting bits – read the full ruling for yourself!

On a lighter note…

Recently, WordPress had sent out notifications to its bloggers that there is a slim chance some of their passwords might have been compromised, so, everyone, please, change your passwords.

And, as it is a good idea to change passwords regularly anyway, I tought it might be useful to re-publish xkcd’s public service tutorial on passwords:

Posted in Humour. Tags: . 1 Comment »

Rights are like muscles – if you don’t exercise them, you will loose them!

One cannot help but wonder how one would react in that same situation.

Would I gush over the ‘Sharia cop’, thank her for sharing,  deilighting that it is most excellent that we live in a truly free country where the right to be offended is so vigorously upheld?  Would I try to convince her that asking us not to film the Muslimas is an infringment on the rights of those very Muslimas to be offended?

Or, would I be delighted to see her and explain that I was just looking for the authorities in order to demand that they intervene and stop  (by arresting the perp waiving the Hezbollah flag) the hate-crime-in-progress?

Or, faced with intimmidation by police, would I have the courage to stand up to the cops and say anything at all…

Until I am in that situation, I will not know…

I was surprised that Blazing Cat Fur did not openly continue to videotape the encouter with the ‘Sharia cop’ (for lack of a better term), but rather aimed the camera down – in light of Friday’s Gilk case ruling! (H/T:  Blog of Walker)

OK – the ruling came out of the US, but both the US and Canadian constitutions are firmly rooted in the Magna Carta and the British Common Law tradition.  Every single one of the (admittedly few – but the experience was universal) times I have spectated in Ontario court rooms, this common root was noted as justification for citing ruling precedents from the US – and yes, each and every one of these US rulings cited impacted on the cases in Ontario courts.  So, yes, it is a victory not just in the US – in a very real manner, Canadians are also affected by this ruling which asserts every citizen’s rights to record the police at any time they are in public, without any restrictions (and to publish the recording afterwards).

A clear view of her badge would have been nice!

Of course, more and more often, police officers are no longer upholding the laws of the land.  Rather, they blindly carry out the instructions they had been ‘handed from above’ with little regard for the rule of law.  Rrather frighteningly, more and more police officers seem quite comfortable remaining ignorant of the very laws they are sworn to uphold!

‘Journalists’ vs ‘Bloggers’


The Quebec Minister for Culture is not the only one who seems to think that ‘bloggers’ ought not be granted the same treatment as ‘journalists’.   This presumption that ‘journalists’ are ‘professionals’ while ‘bloggers’ are ‘unwashed scum’, that ‘journalists’ ought to be granted privileges while ‘bloggers’ ought not has found fertile ground among our ‘elites’.

I came up against this personally, just last month.

At the Ontario Court of Justice – of all places!

Which is rather ironic, because it was the Ontario Courts who (among other courts) ruled that everything bloggers post on the internet is indeed ‘an act of publishing’ and therefore subject to all the laws, rules and standards that apply to any print publication.

Actually, if one thinks about it, this ruling places ‘bloggers’ on par with ‘publishers’ – one rung above mere ‘journalists’, who are, after all,  just employees of ‘publishers’…but let’s not be elitist here!  ;0)

{Let’s also not pretend that ‘blogging’ is actually ‘anonymous’:  the vast majority of bloggers do not take elaborate precautions to hide their identity – and their ISPs will reveal their names the moment it is clear the blogger broke the law.  It’s right in the ISP’s contract…  So, blogging ‘anonymously’ is simply a means of filtering out the frivolous bullying of bloggers too small or not connected enough so that they are pretty much defenseless.  If anyone has a legitimate case and goes through the legwork, the real-life identity of the blogger is accessible to them.  Plus, most bloggers are better known by (and their reputation is thus built on) their online persona – our ‘nom-de-plume’ – than by our mundane name.}

So, what is it that I am actually talking about?

Last month, just one week after they came to Ottawa for the Baglow case, Connie and Mark Fournier were back in Ottawa in court:  this time, they were applying for leave to appeal the ‘Blishen’ ruling in the Warman case. Their case was last on the docket and we had waited around all day only to be told that they would not get to us.  (The case itself ended up being heard last week, and the result was not a good one for the Fourniers.)

While waiting in the courtroom for the Fourniers’ turn to come, I kept writing in my notebook. It is a bit of a habit – it keeps me focused.  And while I didn’t actually take notes on the cases that were going on, I did note the demeanour of Warman’s team of lawyers (headed by the charismatic Mr. Katz) and doodled to pass time.  The judge took pity on those of us waiting and told us that they’ll not get to the Warman case until way after lunch, so we all filed out of the courtroom, intent on finding sustenance.  As in, food.

The bailiff followed us out, caught up with me and informed me that I was not permitted to take notes in the courtroom.  We all stopped, surprised at this:  I had taken copious notes at previous hearings – in several different cases, without ever any complaints against me.  And, I saw journalists take notes at some hearings, too…

We (the Fourniers,  Fred Litvin of the Free Thinking Film Society and of GayandRight, a few other supporters of the Fourniers and I) peppered the bailiff with questions.  Many questions…

He was very polite and exceedingly civil – and I do not doubt that he is a nice man and a truly good human being.  He was simply informing us of the rules, as he – as an officer of the court – understood them.  The upshot of what he said was:

  • the plaintiff/defendant, their lawyer and their lawyer’s aides may take notes in court, as they are ‘participants’
  • no spectators who are simple ‘members of the public’ may take notes in the courtroom, because they might not understand things properly or such and get a false impression of what was happening (I could not help but wonder why a person would need to be taking notes to get a false impression of what is going on – why not ban us unwashed masses from the courts altogether if we are too stupid to follow the proceedings?)
  • ‘journalists’ may also take notes, because they are ‘professionals’ – they are trained and presumably licensed (or will be, in Quebec), so it is OK…
  • ‘bloggers’ don’t count as ‘journalists’ – they are simple ‘members of the public’

When I pointed out that the courts themselves decided to hold us, bloggers, to the same standards as journalists were – so why should we have fewer rights to go with the same obligations – he shrugged, smiled, suggested that I should ‘get a life’ and said that if we really wanted to know more about the rules, we should check with ‘Court Services’….

So, after lunch, armed with a notebook and a pen and a healthy dose of righteous indignation, Fred Litvin (who graciously agreed to come with me for help and support) and I set out to seek the truth behind this double standard.

In the end, we were told that there really was no such rule, that members of the public – even lowly bloggers – were free to take all the notes we wanted to at any hearing in which a judge did not specifically forbid it … and – the bailiff had gone out of his way to find this out independently and then looked up not just me and Fred to apologize for having unintentionally misled us, but also each of the other people who had overheard him give out erroneous information.  I give him full credit for trying to rectify his mistake.

But – that is not my main point.  Well, not one of my two main points (I seldom have just one).

The fact remains that, based on instructions from a number of different judges, on a number of different occasions, the bailiff had been directed to deny anyone but ‘the participants’ in the cases and ‘certified journalists’ the right to take notes in their courtroom. So many judges had done this, in fact, that he was convinced this was the law!


And, once they had demonstrated this level of elitism (and contempt for us, regular citizens), why do WE – the citizens they would prefer to gag – permit them to remain judges over us?!?!?

Seriously – if these judges think the general public is too stupid to follow what they are  saying to us, how can they pass impartial judgment on us?  They have already formed a highly negative view of us – before we even entered their courtroom!

These are the people we are to entrust ourselves to?


…and the other point…

It took us a bit to find the proper wicket/window at the courthouse for ‘Court Services’ – the few inquiries we made sent us off in the wrong directions.  Our bad.  But…

Wherever we went – and wherever we identified ourselves as ‘bloogers looking for an answer’ – we elicited a very unusual response.

Well – unusual in the sense that I have not experienced this type of response from bureaucrats in the past.


Courteous beyond belief.

And,  before we could begin to explain the particulars of our question, their supervisor or their manager, or their supervisor’s manager (or was that their manager’s supervisor?) was called in to deal with us.  Immediately!

And the boss – and bosses’ boss – came right away!!!

And they all looked – highly anxious…

….sort of like I imagine that government officials looked when facing ‘investigative reporters’ at the time of ‘Watergate’

Perhaps bloggers have filled the void left behind when most newsmen and newswomen abandoned ‘investigative reporting’ in favour of quoting press releases; when they joined the cultural elites as ‘journalists’ whose job is not to ‘report facts’ but to ‘present stories’ in a way that helps the social engineering elites control the unwashed masses….you know – us.

No wonder the Quebec Minister of Culture – and every other social engineering elitist [insert insults of your choice here] is attempting to diminish the role of ‘bloggers’!

UPDATE:  BCF has more details on the Quebec Culture Minister’s plans.

Pat Condell: ‘Europe Needs a Revolution’

C.G.P. Grey: ‘Copyright: Forever Less One Day’