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.


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?!?!?


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


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….

John Baglow vs. Freedom of Speech

Connie and Mark Fournier have won!!!

Most awesome news!!!

I’m off to read the ruling here – will comment more (and finally post the missing write-ups) soon!

UPDATE:  Here is what Jay Currie has to say about this ruling.

MORE UPDATE:  Here are my initial thoughts after having read the full ruling.  They’re not happy thoughts…

The ‘Wilson’ case

This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The ‘Wilson’ case

This may be a distasteful case, but the ruling in it establishes an important principle.

Miles Wilson was accused of possessing child pornography.  The police followed a trail where they found an IP address they believed would lead them to the suspect.  The police officer found out that that IP address was served by the ISP provider Bell Canada, and wrote them a ‘form lettter’ requestisng disclosure of the physical location of this IP address.  Based on this information, the police officer obtained a search warrant for the residence indicated, executed the search and found the evidence the police were seeking to prosecute Mr. Wilson.

An analysis of this case from ‘The Court’:

The fundamental issue before Leitch R.S.J. of the Superior Court of Justice was whether, in accessing the accused’s name and street address from Bell without first obtaining a warrant, police had infringed upon the accused’s reasonable expectation of privacy, contrary to s. 8 of the Charter. Remove the legalese and the issue in Wilson becomes far more dramatic: are Canadians free from unbridled state surveillance of their online activities while in the confines of their homes?

First, in rejecting the accused’s s. 8 claim, Leitch R.S.J. determined that one’s name and address, or that of one’s spouse, falls beyond the inference-resistant “biographical core” threshold of Plant. Second, Letich R.S.J. found that given the fact that names and address are “information available to anyone in a public directory”, they are, in isolation, largely meaningless pieces of information as far as s. 8 is concerned.

Here, the issue is in the criminal realm, not the civil case we are talking about here.  However, there are aspects of this case which were examined and discussed during the appeal hearing, specifically as related to the IP address, the expectation of privacy and the differences between this case and the one under review.

The ‘York University’ case

This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The York University case

York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.)

This is an important case because here, the Norwich order (precedent) was used to obtain information about email accounts from an ISP.

Some people wrote a letter about the president of York University which alleged ‘bad stuff’. York University wanted to find out who sent the email, and sued the internet provides (Bell Canada Enterprises and Rogers Communications) to get the information.  The Norwich order was accepted by the judge (G.R. Strathy J) as applying in this case, as per

The 5 elements identified in this case for granting such an order include:

(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of;
(iii) Whether the third party is the only practicable source of the information available;
(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and
(v) Whether the interests of justice favour the obtaining of disclosure.
[emphasis added]

Additionally, a strong case of fraud removes the possibility of a frivolous or vexatious application of the order.

However, there were some significant differences between the York University case and the ‘Warman v FD/internet privacy’ one.  This is just transcribing a few arguments from my notes from the hearing (any and all errors or misrepresentations are mine and I apologize – it is hard to write things down as fast as people are speaking).

Ms. Matheson for the CCLA (I am paraphrasing, keeping as true as possible to her speech):

The York case is a good decision because it ‘passed the test’ – the judges ruling was based on an established prima facie case.  There was a second reason – the agreement between the users and the ISP – but, the judge did apply the test fist.

Internet encourages free speech and anonymity is a critical component of this speech.

It is not a ‘blank cheque’ for defamation, but due regard must be given to Freedom of Expression. In this case, in front of the court now [the ‘Warman v FD/internet privacy’ case], no such consideration was given.

So, in my amateur observations, it appears to me that the significance of the ‘York University’ is two-fold:

  1. The judge first considered the strength and potential validity of the statements which were ‘potentially defamatory’ or ‘fraudulent’.   Only after a strong ‘prima facie’ (or ‘bona fide’ – there was some significant discussion there – it appears that ‘bona fide’ was acknowledged but the strength of it was sufficient for ‘prima facie, which is the test which both the CCLA and CIPPC suggested should be done – I think….but I could be wrong, as the discussion was fast-paced and I could not write that fast…but the fact remains that a strong case WAS established)  case was established – only after this strong case that the ‘speech’ was ‘defamatory’ had been established did the judge rule that the private information ought to be handed over.
  2. The anonymous people in the ‘York University’ had a user-agreement which permitted the disclosure of their information to authorities upon request.  This constitutes ‘consent’ to have their names released:  which is not the case in the FreeDominion user agreement, so there is a difference between the two cases right there, meaning a higher standard of proof is needed to compel the Fourniers to release the confidential information about their users.

The ‘Norwich precedent’

This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The Norwich Case

Norwich Pharmacal Co v Customs and Excise Commissioners [1974]AC 133, 175, HL

From the ‘Cambridge Law Journal’:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

This case deals with disclosure of private information:  when and how.

In Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133, the owner of a patent knew that infringing goods were entering the UK, but could not ascertain their identity. The Commissioners, in the course of performing their duties, had information that would identify the imports. Also, they had unknowingly played a part in facilitating importation of infringing goods. The House of Lords found that where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers.

In other words, the ‘disclosure’ of private information by a witness is not ‘automatic’ but some threshold of proof has to be met to satisfy a judge that the request is reasonable and for the information to be released.

However, if the person who holds the information sought is ‘an accomplice’ (in some way – knowingly or not), if that person is facilitating the ‘wrongdoing’, then they are compelled to release all relevant information right away.

This became important during the ‘Warman v FD/internet privacy’ case, because Free Dominion and its administrators, Connie and Mark Fournier, were named as co-defendants in the action by Mr. Warman.

The question, in my never-humble, not-legally-trained, opinion is whether the Fourniers are simply witnesses, or if they are also culpable in the defamation.

If they are simply witnesses who hold private information, then they cannot be compelled to release it until a judge is satisfied there is a ‘prima facie’ – or at least ‘bona fide’ case to do so.  (Yes, there was much back-and-forth as to which threshold, ‘bona fide’ or ‘prima facie’ ought to be used.)

If they are also partially guilty, then it is their duty to turn all information they might have over, right away.

That is the relevance of the Norwich precedent to this case.

‘Automatic disclosure’ vs ‘Bona Fide’ vs ‘Prima Facie’: the differences

The ongoing narrative of this appeal hearing is here.

Much of the discussion revolved over just how much justification does one need in order to demand information which could lead to the identification of people who posted anonymous comments on the internet, so Richard Warman couls sue them for defamation.  Can he just demand the information – and just get it released (‘automatic disclosure’), or do the people who hold the information (Free Dominion – Connie and Mark Fournier) have the right to withhold it until a judge decides that Mr. Warman has met either the ‘bona fide’ or ‘prima facie’ standard?

For those of us not trained in law, here is a quick overview of the legal terms ‘automatic disclosure’, ‘Bona Fide’ and ‘Prima Facie’ (as understood by me).

‘Bona Fide’

Latin for ‘in good faith’.

In the context of this case, the term was applied in the sense of ‘establishing a bona fide case’ that information was being sought ‘in good faith’, not frivolously.  For example, coming to someone and demanding the identity of their client carries no obligation to reveal such identity.  If, however, one can demonstrate that one truly intends to sue that client, this might (depending on circumstances) constitute a ‘bona fide’ (non-frivolous) reason for requesting the disclosure.

In effect, it distinguishes between someone requesting the information ‘just because they can’ and someone who truly and honestly needs it for some legal purpose.  Therefore, having to establish a ‘bona fide’ reason for requesting some information is a higher threshold than ‘automatic disclosure upon request’.

‘Prima Facie’

Latin for ‘on the face of it’ or ‘at first look’.

It is similar to ‘bona fide’, in that one must demonstrate a need for some information they would like released to them.  However, the threshold in ‘prima facie’ is higher:  one must not only demonstrate that one wishes to use the information (like, say, by filing a defamation suit), one must also demonstrate that there at least some evidence that, at first look, suggests one may have been defamed.

It does not require one to prove that one was defamed, only that at ‘first look’, he could have been.  A look at the statements themselves is sufficient to establish whether they could, potentially, be defamatory.  If not, then the ‘prima facie’ has not been met and there is no release of information.  If, on the other hand, the statements are such that they could, potentially, be defamatory, then the ‘prima facie’ threshold is met, the information is released and the lawsuit may proceed:  it will now be up to the lawsuit to determine if the statements were true or not (truth of the statements is a defense).

The differences between the thresholds of ‘need’ for the identity of the anonymous posters to the Free Dominion forum became an important theme in the hearing.  So, let me recap what my (untrained) understanding of the differences between them are:

Automatic disclosure:  anyone asks for the identity, claiming whatever reason, the information must be handed to them.

Bona fide case: only after one demonstrates that one has an ‘honest intent’ need for the information, like, say, legal action for defamation, the information must be handed to over.  This protects the anonymous people form having their identity revealed and potentially have their reputation damaged simply due to ‘frivolous requests’ – or from opening them to political persecution.

Prima facie case: only after one demonstrates that the statements which were made about one are indeed potentially defamatory, and that one does indeed intend to take action, must the information be handed over to them.  This protects the people form not only ‘frivolous requests’ for their identity to be revealed, but also from ‘frivolous lawsuits’ which have no chance of being successful, yet which in themselves are being used to ‘punish’ (lawfare and SLAPP suits would fall into this category).

I cannot stress strongly enough that I am not trained in law in any way, shape or manner.  These are simply the things I had to learn in order to understand the principles discussed during the ‘Richard Warman v. FreeDominion/internet privacy’ appeal hearing.  This is meant as a lay explanation – it helped me, I hope it will help you as well…..

More of my observations of this hearing – and tools to understand the case – are here.

What the ‘Warman vs. FD/internet privacy’ case is all about

When the ruling in this case was released in March of 2009, there was much commentary by smart and learned people of what this case is all about and what its implications are on our society.

Michael Geist is a law professor at University of Ottawa, where he holds the Canada Research Chair in e-Commerce and Internet law.  He is also the founder of Canadian Internet Policy and Public Interest Clinic (CIPPIC), an intervenor in the appeal hearing.  This is what he had to say:

Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff’s claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff (whether in a defamation or copyright case) and the privacy and free speech rights of the poster.

Read the full post here.

Don Butler has a piece on the appeal:

Their decision could chill whistleblowers and others who use pseudonyms to post controversial comments, say civil libertarians.And, they maintain, if the judges support unmasking anonymous posters, that could erode their privacy by allowing others to piece together vast amounts of personal information.

Read the rest here.

So, yes – the implications of this ruling are ‘big’.

Please, keep in mind that I have no legal training whatsoever – so I am only commenting on what I saw and heard, as I saw and heard it.  But, having watched the appeal hearing, this is what I understood to be the issues this case revolves about:

  • Mr. Warman saw a number of posts on FreeDominion, a conservative discussion forum, which posted either comments that Mr. Warman considered defamatory, or which linked to a completely different website, where some other people made statements Mr. Warman considered defamatory
  • Mr. Warman decided to sue the anonymous posters – and Mark and Connie Fournier, the administrators of FreeDominion
  • The Honourable Mr. Justice Stanley Kershman decided in favour of Mr. Warman and ordered the Fourniers to release the information sought
  • The Fourniers have appealed – hence, this hearing.

It is important to understand Justice Kershman’s ruling, so we can understand the grounds of the appeal.  From the ruling (the links are mine):

[13] The Plaintiff relies on the case of Lillie v. Bisson, [1999) OJ. No. 3677 (CA.), a case
in which the Ontario Court of Appeal says that courts should encourage a liberal interpretation of
Rule 76 in order to reduce the cost of litigating modest sums.

[15] Tue Defendant relies on Irwin Toy for the proposition that disclosure should not be
automatic upon the issuance of a Statement of Claim:

If such were to be the case, the fact of the anonymity of the internet could be
shattered for the price of the issuance of spurious Statement of Claim and the
benefits obtained by the anonymity lost in inappropriate circumstances.

(16) The Defendants argue that the Plaintiff must establish a prima facie case by way of
affidavit evidence before disclosure is ordered.

[33] In the case before the court, we are dealing with an anti-hate speech advocate and
Defendants whose website is so controversial that it is blocked to employees of the Ontario
Public Service.

The Honourable Mr. Justice Stanley Kershman ruled that the Fourniers (of the ‘controversial website’) must ‘automatically’ hand over all information which could lead to the identification of the ‘John Does’ to the ( ‘anti-hate-speech advocate’):  hence, the appeal!