This is reporting on a real-life (unfortunately) court case, the whole narrative of which is indexed in Dr. Baglow vs Free Speech – and listed at the top bar of this blog.
As I left off, Barbara Kulaszka, the lawyer representing the defendant Mark Fournier, had finished her closing arguments. It was now Roger Smith’s (known online as Peter O’Donnel) turn to make his closing arguments.
It is difficult to describe Roger Smith in a few words because he is quite a complex person. Even my short exposure to him made that clear. So, what I write, can only be a very tiny glimpse of this unique (in a very good way) and highly intelligent man.
Roger Smith is of a similar age as the plaintiff, Dr. Baglow, and both have silver hair – but that is where the physical resemblance ends.
Where the extroverted Dr. Baglow is expansive, speaks loudly with expressive body language (his doctorate is, after all, in poetry – so some theatricity ought to be expected) while the introverted Roger Smith is shy and humble in his demeanor, speaking softly and gently.
So, one has to listen carefully when Mr. Smith speaks – not just because he is soft-spoken, but also because he makes many little jokes under his breath! And his jokes are well worth straining one’s ears for.
Even Madame Justice Polowin seems to enjoy his jokes – her eyes sparkle and she has even, a couple times, rewarded Mr. Smith’s humour with the kind of smile usually reserved only for Mr. Frankel. (At least – in this courtroom…..though Connie has, at times, earned it as well.)
I will be paraphrasing a lot, but, to the best of my understanding, Roger Smith’s defense revolved around the following points:
Firstly, he asserted that the impugned words were actually not defamatory – and urged the judge to find that way. After all, the fact that the late Jack Layton was referred to as ‘Taliban Jack’ not only did not cause him any defamation, it seemed to actually help his electoral success!
Madam Justice was nodding her head in assent.
Secondly, he (RS) did not mention the plaintiff by name – Roger Smith’s online pseudonym called Dr. Bglow’s online pseudonym a name. But, pseudonyms are not the same as real-life names and, as even the court’s own expert had testified, people often build a very different, unique persona for their online pseudonym – one which intentionally differs in tone and perhaps even opinions from their real-life identity (for various legitimate reasons). Thus the two ought not be conflated: Roger Smith did not call Dr. Baglow anything – Peter O’Donnel called Dr. Dawg a name, that’s all…
In addition, the context of the debate – ongoing, skipping around all through them interwebitudes from blog to blog to discussion boards and back again, over a number of days – had reduced the defamatory potential of the impugned words to exactly zero.
Since that debate did bounce around from one online place to another, it is not the easiest thing to follow the actual real-time sequence in which the various comments were made because some were time/date stamped in one time-zone, some in another. In order to make it easier for Madam Justice to follow the timeline, RS had taken the pains to sequentialize them in Appendix A. Madam Justice was much less interested in this at that point in time than Mr. Smith was, but, in my never-humble-opinion, she will find it a useful tool as she reviews the evidence.
Which she will – she made that abundantly clear!
For the duration of the trial – and even in the communication that was not publicly visible, like the various emails that form the voluminous body of the exhibits in this trial and tribulation, the plaintiff and his lawyer, Mr. Burnet (who had, actually, commented as a ‘guest’ on the Warman trial coverage on this very blog in the past), had referred to Roger Smith as an old crank, a wingnut.
This, I believe, was the very word that Madam Justice Polowin used extensively when questioning the court expert on online media and communications – and he assured her that once a person has acquired an online reputation as a ‘wingnut’, nothing that person says will be taken seriously by anyone else and his commentary will either be skipped right over or simply seen as humorous interlude…
But, I digress…
Throughout this whole ordeal, Peter O’Donnel had been referred to as a crank, a nut, a wingnut…and his writings were referred to as ‘incoherent rambling’ and ‘woolly essay’. In other words, ridiculed and dismissed. There was even one email read into evidence from Dr. Baglow to someone (Jay Currie, I suspect, but am not certain) where Dr. Baglow dismisses Peter O’Donnel as an inconsequential crank, saying he’s probably not even going to bother suing him because coming from him, the impugned words ‘mean nothing': it was the Fourniers he was going after for having provided a forum for this speech to be uttered.
So, RS continued, he was surprised that in his closing arguments, Mr. Burnet had promoted Roger Smith to an intelligent man, a deep thinker … and his writing was promoted to ‘well-composed prose’!
It was at this point that Roger Smith earned one of Madam Justice’s impish smiles and her cheeks even flushed a bright pink, as I suspect she was working hard to stifle a fit of giggles…apparently, this ‘promotion’ had not gone unnoticed by her!
Working on his momentum, RS continued building his defense, recalling the plaintiff’s words (which Dr. Baglow regretted and apologized to ‘our agricultural workers’ for having used) ‘yokels with pitchforks’ and re-classified Omar Khadr and his ilk of terrorists (the subjects that evoked the impugned description of Dr. Dawg from Peter O’Donnel) as ‘super-yokels with rifles’.
And, a substantial number of Canadians (59%, if I understand it correctly) do hold the belief that lending moral support to Omar Khadr is indeed ‘giving moral support to the enemy’…it would, in very real terms, enhance their geopolitical struggle on the other side of the world if their members were receiving moral support from some people over here, undermining our political will to continue in the armed struggle.
RS asserted that leftists often make common cause with terrorists in their regional struggle. (Indeed, I would have taken this further, pointing out that many leftists believe that their utopian end justifies any means and that supporting (directly or indirectly) the enemies of our Western society, based on civil liberties, will bring our civilization down faster, which will help them build their tyrannical dystopia that much faster.)
The judge interrupted RS at this point, saying he need not belabour this: she understands that he means that ‘support’ is more than just money or direct fighting…
During this bit, Dr. Baglow was leaning back from the table, his long legs elegantly crossed in front him in a classical ‘power pose’ – but he was very fastidiously studying his manicure.
Mr. Burnet was using the index finger of his left hand to tap his ear, listening carefully to every word and undoubtedly preparing for his rebuttal at the end of the day.
Indeed, RS continued: support can be passive, like supporting ‘carbon taxes’…I suppose the climatologist in him cannot be suppressed! (By the way, according to the brief discussions we had during breaks, our scientific conclusion on ‘Global Warning’ are pretty similar.)
His essay (within which the impugned words were contained) covered a number of topics – from Steven Harper to long-form census (something that was VERY HOTLY debated in my own family: one of those instances where my brilliant economist father-in-law, who had been a special economic adviser to 4 different Liberal Prime Ministers – two as PM’s, two while Ministers of the Crown who later went on to seize ‘the brass ring’, well, he and I battled long and loud over the souls of the next generation of our family over this issue! I think it was the next generation of our family that won: they were forced to consider the issue from all possible angles and reach a conclusion of their own (not that they’d tell us what that is)!!! Which, really, is the point… Though my hubby and my mother-in-law tried throwing things at us (figuratively!) to change the topic….it seems not everyone appreciates a heated, no-holds-barred political discussion at the dinner table! Which reminds me – I must get something awesome prepared for the next family holiday….) Re-focusing!
The essay covered things as diverse as the ‘beer and popcorn’ fiasco and lamented the hypocrisy of calling conservatives ‘yokels with pitchforks’. RS admitted freely that it was a poorly written essay, and that it rambled a lot and would not have won any essay contests! Indeed, it was so poorly written that the thread was virtually unread…until, that is, this whole thing erupted! Then Streisand effect took over….once Dr. Dawg and MsMew sank their teeth into it (my words, not his).
OK – I must admit to you, my dear reader, that I have mangled both the wording and the timing of the various arguments. I am working both from memory and my notes – and when I see something touched on, I keep writing – spilling the whole scoop to you, even when it ought to have just been foreshadowing…then, I read on and find the full argument I described 300 words ago only happened now. Please, forgive me my sloppy reporting – I just wish someone better at it than I would have been in the courtroom to present another accounting of the events.
I would be remiss if I did not mention that throughout the trial, different people did drop in for a bit here and there. Today, for example, Mr. Frankel’s sister-in-law, who is a law student, dropped by the courtroom to watch the closing arguments (and got to have lunch with Mr. Frankel to boot!).
He-who-must-not-be-named (on pain of legal action) also dropped in every now and then, though not today.
And Canadian Cynic, known in the blogosphere for his knowledge of Linux (good) and for hurling misogynistic slurs at conservative women (sad, so very sad) on the internet (at least, that is what a quick Google search suggested), also popped in a few times: I even saw him chatting with Dr. Baglow in the hallway, but no matter how hard I tried to establish eye contact, I failed.
On this last day of this case, there was also a youngish man with a mop of blond hair, a gray tweed jacket, light open-necked shirt with a subtle stripe and blue jeans. I approached him during the lunch break and sked if he were a reporter.
“Sort of” he smiled as he slid over a copy of Frank magazine. “I’m with them!” I saw him later chatting with Canadian Cynic. Funny thing is – Frank magazine’s name did actually pop up in the trial earlier, as an example of how different print media have differing ‘standards’ for ‘discourse’…as in, one would not expect as colourful a language in, say, CTV or CBC or ‘Globe and Mail’ as one would from ‘Frank magazine’… And demonstrating that different segments, even wihin the same ‘print media’ would have different levels of discourse and expectations of the way language is used is at the very heart of this court case: the plaintiff asserts that once published, even to one person, the ‘language’ must be ‘standardized’ and it really is of no relevance whether this is a scientific treatise or a tabloid or a shock-jock-thingie (WIC radio case)….while the defense is claiming that in different platforms, the participants are performing for different audiences and that the expectations and understandings of the particular audience of their message board is of paramount importance because it is the perceptions of that segment of the citizenry who will be exposed to the impugned words, so, how they perceive will define their defamatory potential.
OK, I have been generalizing again – but I think that this is important because conveying the ‘flavour’ of the differing sides is so core to this very case….
Thank you, my dear reader, for having indulged me thus far.
I have attempted to capture both the substance of Mr. Smith’s defense as well as the atmosphere in the courtroom. But, let me return to it, in my most imperfect manner.
Roger Smith explained to the judge that he truly and honestly held the belief that what Dr. Dawg had posted in his comments constituted giving aid and comfort to the terrorists and enemies of Canadian Armed forces in Afghanistan – and that while he held these beliefs about the words posted by Dr. Dawg, he did not harbour any personal malice against Dr. Baglow himself … but that the evidence bore out that, sadly, this was not true in reverse.
RS pointed out that while Dr. Baglow had reached out to Connie and Mark Fournier, asking them to settle out of court, he had not presented any such opportunity to Mr. Smith himself. Not once had Dr. Baglow extended Roger Smith the courtesy of even contacting him…
Any reading of the discussion, as it evolved over the 7 or so days, will reveal deeply vitriolic comments made by Dr. Baglow – much more so than by RS.
‘Begly’ (the name that the defendant, at this point, thought was Dr. Dawg’s meat-space name – not even being aware of the proper name of the pesky paintiff who thinks himself so important that ‘everyone’ knows him, yet he should not have to meet the ‘higher bar’ for defamation set for ‘public figures’ – he’s the only ‘public figure’ who should have the ‘private person’ protections against legitimate political criticism), Zyklon B, pot-calling-the-kettle-black…you get the picture.
At this point, Mr. Smith became unsure if pointing out just how much of a chill a ‘guilty’ verdict would cast over the interwebitudes and just how cluttered the courts would become with defamation cases if the bar were to be set this low… Being a principled person, he wanted it judged on the merits of this case – which he honestly thinks are insufficient for the finding of defamation. But, this is where he was, in my never-humble-opinion, torn: he wanted the court to be aware of the potential real-life implications of setting the bar this low, without appearing to ‘fear-monger’ or some such thing.
Madam Justice Polowin found this rather endearing: she assured Mr. Smith that the so called ‘floodgates argument’ is not without merit and is, at times, successfully employed by real-life lawyers at court so he, as a self-represented citizen, ought not be ashamed of raising it. And she smiled…
I know my words do not do justice to this moment at court but I’d like you, my dear reader, to know that this was a ‘Moment’ with a capital ‘M’…if you excuse the expression.
At this point, Roger Smith concluded his defense by saying that he cannot afford a fancy lawyer and that it would probably have been wise not to fight this battle, but, that he was not fighting it just on his own behalf but also on the behalf of the many Canadians who cherish their freedom of speech and exercise it, including on the internet, and that he felt that it was his moral obligation to our society to fight this battle!
In her right, Madam Justice Polowin seemed to understand this – and appreciate the kind of sacrifice it took Roger Smith to go on and fight for all of us!!!
She beamed a wonderful smile at him, and assured him that, for a self-rep, he had done an admirable job, that he was respectful of the court rules and, along with Connie, they had been some of the most professional self-reps she had ever had the pleasure to preside over.
wordpress is acting up….
….a couple of my attempts at entering a post have ‘failed to save’….
…frustrating, having to re-enter a post several times….as I’ve gotten into the habit of entering the posts in WordPress, rather than another format and then copy/pasting….
sorry for the delay – will try another way tomorrow….
Food for thought…I have never, ever, in my life indulged in illegal drugs – not even marijuana.
Because as illegal substances, there is no way of knowing if they are adulterated with poison….
But, I do think that ‘drug laws’ are an abomination: they are an admission that we are the slaves of the State – if the State did not own our bodies, it would not have the jurisdiction to govern what we do or do not choose to put into them.
Now – aside from the ‘recreational’ drugs, there is another, to me, more important implication of drug prohibition and the related legislation: the only people who can legally ‘prescribe’ medication are people whom the government permits to do so.
And these are people educated in government controlled facilities, largely funded by drug manufacturers.
This is a glaring conflict of interest.
I am not saying that every MD out there is in the pockets of Big Pharma. Far from it. But, the education they receive is not well-rounded…and there is no other field that competes against the ideas – or, indeed, complements them.
No, I am not saying that homeopathy and such are credible – just that the only things that get research money for proper scientific examination are in a very, very narrow field.
Let me give you an example of what I mean: the ‘placebo effect’.
Currently, it is regarded as no more than a nuisance: patients think they are getting medicine and so get better…even in cases of legitimate disease that is not just a figment of the patient’s imagination. So, studies control for it in order to evaluate the efficacy of drugs.
But, turn this around: if there is a way to ‘trick’ the body into healing itself using no harsh chemicals – why are we not studying this in the most rigorous scientific manner possible? A cure with no side effects is nothing to sneeze at…
That is just one tiny little example.
Another one is from my own experience: I have some rather rare health issues which most likely stem from having spent the first 13 years of my life 7 km downwind from a chemical plant in a socialist worker’s paradise (where the people who regulate the chemical plants – the government – are the same people who own them – the government – and there is no governing body over them to bring them into compliance with even the pitiful regulation they do have on the books….). So, some informed friends did some digging in the scientific literature and found a precedent for treatment of conditions like mine.
I cannot get that treatment, because it is ‘not common’ and, whole a whole slew of MD’s I brought it to believe it would likely make it possible for me to live again a semi-normal life (no longer bed-ridden and all that pain), they will not prescribe it because ‘it is unusual’ and ‘prescribing it might make the OHIP – the government bureaucracy that oversees the MDs – suspicious enough to audit the MD who prescribed it, which would be too much of a bother….much better not to help me return to being a productive member of our society…
So – when we talk about drug prohibition, do keep in mind that we are not just prohibiting narcotics and halucinogens – we are prohibiting people from accessing legitimate medication needed for the treatment of real-life medical problems!
Because, like it or not, if I were to go out and seek health-restoring medications for myself, I could end up in jail for life on an ‘illegal drug’ conviction.
Not all drugs are ‘recreational’….but they are all equally illegal!
And that does not even scratch the surface of incentivizing police forces to focus on drug busts and the accompanying property forfeiture instead on preventing property and violent crime…
This is a report on an ongoing trial: the rest of this account can be found here (and at the top bar of this blog).
On September 22nd, the judge warned everyone in the courtroom that come hell or high water (and, I am paraphrasing here), this trial was going to finish tomorro – that is, today. In order to make sure that this indeed comes about, she would recall everybody into Courtroom #20 of the Elgin Street Courthouse in Ottawa, Ontario, at 9am instead of the usual 10am – adding a one-hour ‘buffer’ to their time.
Aware of this, I arrived at the Courthouse nice and early – about 25 minutes after 8. I strolled slowly through the parking garage, stopping to chat with one of the attendants whom I got to know well enough to say ‘hi’ to over the duration of these proceedings. Then I had a tea and went to the ladies room before – with plenty of time left – strolling up to the 2nd floor and to the appointed courtroom.
Surprisingly, I did not see any of the actors in our little drama – and I began to get an uneasy feeling. Did I get the time wrong?
I checked my notes and the wall clock and, sure enough, I still had 12 minutes before the proceedings started.
Ah – there was a paper sticky-taped onto the door – perhaps the press finally figured out the importance of this case to their own ability to report the news and enough of the showed up to have to move things to a larger courtroom!!!!
Here was some incoherent message about teenagers and dating…. But, the look at that sheet of paper gave me a glimpse through the double doors’ windows…and it looked like the trial was already ongoing!!!
Not wanting to make a lot of noise inside the courtroom upon my arrival, I took my notepads and scribble-tools (today I was using a blue Zebra pen, fine point – they write quite quietly and have a good feeling in the hand, heavy but not too much so…) OK, I got my implements to hand and intramurated velocitously. (Yes, I am a huge fan of Black Adder – and if has, at times, affected my vocabulary….though, the character I most closely identify with is Baldrick.)
OK – in I sneak and sit down as quietly as possible.
Everybody is in and things are in full swing!
Barbara Kulaszka is standing up and speaking.
To her left, Connie Fournier sits calmly, wearing a dark purple pantsuit and a cream blouse, which I will later notice has a delicate black embroidery and is accented by a single strand of knotted pearls, long enough to reach beneath the blouse’s collar. The overall look is pleasing, but, from behind, the bob in which her hair is cut is just the wrong length, making her neck appear shorter than in had in her previous outfits. However, this optical illusion is dispelled when Connie glances back and gives me a warm smile.
To the right of Ms. Kulaszka sits Roger Smith, aka Peter O’Donnel, in his blue blazer and another pair of tan slacks. His shirt will later be revealed to be almost a twin of his earlier one – black and charcoal stripes, but instead of a blue pinstripe, this one has a gray one.
Next is Mr. Steven Frankel, the brilliant young lawyer representing the CCLA.
To his right, Mr. Burnet, the Plaintiff’s lawyer, had his gaze firmly fixed on the judge and was listening intently to Ms. Kulaszka’s every word. He had better, too – at the end of the day, he’d have a chance for a brief rebuttal to all the defendants’ closing arguments, so listening intently was very critical.
On the far right, as usual, was Dr. Baglow…I bet he does not hear that phrase very often!!! Sitting far back from the table, his legs elegantly crossed in front of him, he had a calm and almost serene demeanour. In his signature black suit and, as he once wrote, ‘the most comfortable walking boots on Earth’, I glimpsed a navy cuff of a shirt, if I am not mistaken…though, I must admit, I was so busy trying to catch up with what was being said that I did not take the time to note this down. My apologies.
Later, during a break, Dr. Baglow helped me out: he said he noticed I was wondering about the pin in his lapel. It was indeed some sort of an abstract maple leaf: a pin denoting 30 years in the Public Service. During another break, he let me know that the reason why he only wore his gun-metal-rimmed glasses at some times was because they were reading glasses and he only needed them at some times.
This made me a little envious: I also have glasses, but mine (purple-rimmed) are progressive trifocals….yet, I still vacillate between wearing them or not. When I wear them, I can actually see what is going on: the major things, like people’s expressions and demeanour (I may not be able to decipher it, but I can at least describe it) – and the minor things, like, say, what I am writing down. However, I cannot shake the feeling that, when I am not wearing my glasses, I get a much better feel for everything….that I can better absorb the atmosphere and emotions and all that. So, I am constantly putting my glasses on, taking them off, putting them on, taking them off….sitting on them….sorry, I am rambling….
As I started taking notes, Barbara Kulaszka (BK) was just speaking about Dr. Baglow having been at the forefront of the Omar Khadr re-patriation movement.
If you read my blog regularly, my dear reader, you will know my views on the huge miscarriage of justice that is the Omar Khadr case. Perhaps it is my Aspieness, but, I am a big one for the adherence to the rule of law. Yes – sure, I hate some laws and believe that we MUST change them – but, until such a time that we DO change them, we are obligated to follow them.
And, according to the Geneva Convention, there was only one legal manner to deal with Omar Khadr: two bullets to the back of the head.
Anything less is a failure to adhere to the International Law and endangers civilian populations at the hands on non-uniformed combatants. The Americans ought to be prosecuted for War Crimes for having permitted Omar Khadr to live and even rendering him medical aid!!! Such a travesty!
At an earlier time, I actually had a conversation with Dr. Baglow about Omar Khadr and I mentioned that the two of us would probably agree that, in his case, the International Laws were not followed. Indeed, I raised the subject specifically because I expected him to elaborate, so that I would have the opportunity to point out just how deeply misguided – if not downright evil for endangering civilian populations everywhere – his position on Khadr was.
Unfortunately, Dr. Baglow just sighed deeply and looked so very, very sad that I did not have the heart to continue the conversation…and thus did not have an opportunity to enlighten him on the error of his thinking.
OK – back to the important stuff!!!
BK was explaining how Dr. Baglow was at the forefront of calling for the repatriation of the War Criminal Omar Khadr.
Next, she defined what the word ‘supporter’ means: one who supports.
For example, a ‘supporter’ of the Maple Leafs’ is NOT somebody who plays hockey with them, who is a member of the team. Rather, it may be somebody who buys their merchandise or watches their games or just says things that are nice about them. Even, perhaps, just expresses sympathy with them when they are loosing…
Similarly, saying somebody is a ‘Taliban supporter’ – it does not mean he is one of the Taliban!
Rather, it means somebody who may say things that express empathy with the Taliban….
OK – I am having a hard time wording the next bit: most likely because BK is much nicer a person than I am, much kinder and gentler…and I am ‘choking’ on typing the words she actually said, as they show way more of an empathy for Omar Khard than I am deeply convinced he deserves… But, she was speaking for the defendants, not me, so I must choke down my opinion and report to you, my dear reader, her words…
BK said that ‘expressing support for ‘the human rights’ (as if a non-uniformed combatant had any, under international law) of Omar Khadr’ could be interpreted as expressing empathy for the Taliban’ – and, by definition, that would be included in ‘being a supporter of the Taliban’.
Indeed, argued BK, the plaintiff himself used the very same logic when he said that the CCLA supported father Boissoin (a Catholic priest who was given a lifetime ban by a Human RIights Tribunal on speaking about the Catholic Church’s position of homosexuality), saying that the CCLA ‘gave aid and comfort to hate speecher’ and that they were ‘hate-speech facilitators’…that the CCLA ‘stands with haters’ and ‘aids in homophobia’.
BK asserted that ‘giving aid and comfort’ is, indeed, the very definition of ‘supporter’!
At this point, Madame Justice (her black judicial robe, white collar and red shash accentuated only by perl stud earrings and simple, elegant rings on the ring finger of each hand) nodded her head in assent and reasoned agreement.
In addition, BK carried her momentum forward, this was the medium of a Message Board – not a scholarly dissertation…which, through medium alone, classified this as a ‘comment’…
The Judge wondered about this being ‘fair comment’ if fully 41% of Canadians shared Dr. Baglow’s view. If I were the lawyer, I would have quickly pointed out that the fact that this automatically meant that 59% of Canadian did NOT share Dr. Baglows view – making this a very fair comment indeed. But, I am not a lawyer, nor do I play one on the internet…
Instead BK took a much better tack, pointing not to peasant logic, like I would have, but to actual law: she presumed Mr. Frankel would speak to this later (to which he nodded – earning one of Madame Justices’ broad smiles), but, the legal test (as per the WIC radio case ) was whether ‘anyone can honestly hold that opinion’. Not the majority, not 41%, but ‘anyone’. (And, I am heavily paraphrasing – I am simply not able to take notes fast enough! You, my dear reader, ought to fire me and get a faster writer to report on this!!!)
As in, of ‘anyone’ can honestly hold and express this belief – that is the test.
This, the Judge agreed with.
Which is where things took a turn into territory rather unknown to your reporter – but one that seemed very familiar to both madame Justice Polowin and Ms. Kulaszka: the Vietnam War issue… They had a fun back-and-forth about someone named ‘Jane Fonda’ and a nickname of ‘Hanoi Jane’ – but, not knowing the context, this did not make much sense to me. But, the two of the seemed happy, joking, agreeing – on the same ‘note’, if you get my drift. ‘Ancient argument’, ‘based on fact’ – these were the terms ‘flying about’.
In his turn, Dr. Bagglow seemed so bored, he was in danger of falling asleep…
Which is where the topic of ‘Taliban Jack’ got re-introduced (it had been discussed ‘many’ times before to illustrate how hyperbole and nicknames and memes work).
From here, the proceedings took a turn into legaleese: another field I am blissfully ignorant of. All I can do is report the words…and badly, at that, as I am not fast enough to get them all down…my deepest apologies, my dear reader!
Madame Justice Polowin wanted to know how does this get ‘around’ the ‘Grant’ test.
BK disagreed – the ‘test’ here was not ‘Grant’ but ‘WIC‘. People listening to a ‘shock jock’ would know a well-followed controversy, the facts of the case were known to the audience in that case as in this one. Roger Smith was talking about ‘Dr. Dawg’ – a pseudonym.
If people did not know who ‘Dr. Dawg’ was – then, saying something about a ‘pseudonym’ was clearly not defamatory.
If people DID know who ‘Dr. Dawg’ was – then they would have been following the controversy and been aware of the background facts…and thus would have been able to understand the sense in which the words were uttered – making them, yet again, not defamatory!!!
What needs to be weighed here is the state of mind of Dr. Baglow during this whole exchange: from the very beginning, his aim was to find a pretext to sue her client.
The judge did not, to my untrained eye/ear, appear particularly empathetic to this line of reasoning…as expressed by the succinct: “So?!!?”
Which I took to imply that the plaintiff’s state of mind had no relevance on whether or not he was defamed…by the defendants…
BK handled this rather well.
As Dr. Baglow sighed deeply and examined his manicured hands, BK explained tat re-posting the disputed words AGAIN using his sock-puppet persona ‘MsMew’ ensured that even if the original words were taken down by Roger Smith, they would remain on the site – along with the malicious identification of Dr. Dawg as Dr. Baglow. This demonstrated malice – but not on the part of her client, but on the part of Dr. Baglow…
Indeed, BK continued, given the definition of the word ‘supporter’, her client did not think the impugned words were ‘defamatory’ in any way, shape or form (yes, I am paraphrasing).
Dr. Baglow, on the other hand, had demonstrated malice with his ‘sock-puppetry’ – and, as Dr. Dawg and MsMew, it was he who was bullying her client.
As for ‘malice’, the ‘WIC’ case demonstrated that even though the ‘shock-jock’ ‘hated’ Ms. Simpson’, that was irrelevant in the legal ‘finding of malice': rather, paragraphs 67 to 85 (of the ruling in the WIC case, I can only presume) show that since the dominant motive was that the ‘shock jock’ ‘believed’ what he said, the fact that he also hated her did not matter.
OK – I freely admit, there was a bit here that went 100% ‘over my head': something about ‘Ross vs. New Bruns’ or something somewhat similar….predominant motive, tab 12 paragraph 106…I have no clue what this was about…
Yet, this concluded this bit and, in the next installment, I shall report on Roger Smith’s closing arguments!
1. Electronically stored information is discoverable.
2. In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into
account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest
and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the
court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal
with electronically stored information.
3. As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.
4. Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the
identification, preservation, collection, review and production of electronically stored information.
5. The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.
6. A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to
search for or collect deleted or residual electronically stored information.
7. A party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good
faith by using electronic tools and processes such as data sampling, searching or by using selection criteria to collect
potentially relevant electronically stored information.
8. Parties should agree as early as possible in the litigation process on the format in which electronically stored
information will be produced. Parties should also agree on the format, content and organization of information to
be exchanged in any required list of documents as part of the discovery process.
9. During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect
privileges, privacy, trade secrets and other confidential information relating to the production of electronic
documents and data.
10. During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation
takes place, while appreciating the impact any decisions may have in related actions in other forums.
11. Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless.
12. The reasonable costs of preserving, collecting and reviewing electronically stored information will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order.