Thoughts on the Ruling in Baglow Vs. Freedom of Speech

For the background on this case, please see here.

For the full ruling, see here.

Prior to the closing arguments, I begged John Baglow to, please, stop this lawsuit, even at such a late date.  I promised I’d help him fundraise to cover his costs if he, even at this point, called the whole thing off.

Why?

Because I firmly believed that any ruling on this case would necessarily be a loss for freedom of speech and a disaster for all of us who socialize on the interwebitudes!

And I was right!

Yes, Connie and Mark Fournier, as well as Peter O’Donnel, have won because even though Madam Justice Polowin found the comments to be defamatory, she also found them to be fair comment and dismissed the case.

So, yes, the Fourniers and POD have won.

But it is a bittersweet victory for them and a decided loss for freedom of speech in the internet.

Let me explain why…

First, let’s name the elephant in the room:  the process is the punishment.

Baglow has dragged the defendants through the court system for years and cost them tens, if not hundreds, of thousands of dollars in court costs and lost time/productivity.  Yet, in her wisdom, Madam Justice Polowin did not order Baglow to pay the Fournier’s court costs.

Not having any training in legal matters, I find this mindblowing.

If the words were deemed to be ‘fair comment’, as Madam Justice Polowin had ruled, why should the Fourniers and POD have had to pay tens of thousands of dollars in legal fees, travel and accommodations in order to defend themselves against what she has ruled is a baseless accusation?

And why should they have to pay half the costs of a court expert in internet communication:  an ‘expert’ who is so very up on internet communication and customs that he testified that he’s never ever heard of Godwin’s Law?!?!?

Really?

An internet communication expert who’s never heard of Godwin’s Law?

Expert?

Come on, this is a joke!!!

Even my mother-in-law, who needs help logging on to Facebook, has enough internet savvy to know Godwin’s Law, aka reducto ad Hitlerum…

But, that is besides the point:  the bitter lump of coal (actually, coal is not that bitter, but you know what I mean…) here is that while the defendants may have been found innocent, but they still get punished by not having their costs covered and having to pay for an ‘expert’ which would not have been necessary had the judge had even high-school level knowledge of the online world around her.

Second, I most vociferously disagree with some of her rulings on a the various issues raised in the case, because they will, in a very real sense, cause a serious chill in online communications.  It will probably take me multiple readings to fully analyse the significant damage this ruling poses to freedom of speech, but, one of her rulings practically jumps out at me.

This is the ruling that providers of an online discussion space are considered to be the publishers of what other people post to these fora, whether this is moderated or not.

This spells a disaster for every blogger that permits comments and makes the running of un-pre-moderated discussion fora a very serious liability danger:  most will probably be limited to permitting only politically correct speech and no discussion of controversial topics whatsoever.

In reality, Madame Justice Polowin ruling means that, for example, WordPress or Blogger, by providing a platform for publication with the aim for people to come there and exchange ideas, that this makes WordPress or Twitter etc. the publishers of that communication and just as liable for the words published on their platform by third parties as if they themselves had written it.

Just think about the impact this ruling will have…

Sorry, I’ve got to leave this here for now….you see, dear reader, I suddenly have this terrible pounding headache….