Mark Lemire and Section 13: report from Federal Court hearing on 13th of December, 2011

December 14, 2011 — xanthippa

Free Dominion has a discussion with several reports about the Tuesday hearing in Federal Court in  Richard Warman’s ongoing case against Mark Lemire, which has run into a snag:  the question whether Section 13 of the Human Rights Code (the thought-crime section) is Constitutional or not.

Connie Fournier reports that the cast was large:  from CCLA and BCLA to Doug Christie on stage, from BigCityLib to free-speech bloggers in the audience.  Here is a little quote from her report:

“During this time, the judge listened intently and didn’t interrupt. His face was inscrutable. The funniest moment of the hearing came when the lawyer for B’nai Brith said that Section 13 is “a ringing endorsement of free speech”. Everyone in the audience snorted and snickered uncontrollably. (Probably only one person in the audience was a censor and the rest were free speech supporters or media).”

An excerpt from Narrow Back’s  report:

“At 11:00 we returned to hear from the African Legal Clinic. They talked about “irradicating discrimination” for “deeper social concerns” “improvement of the condition of less fortunate people” blah blah, etc. They also talked about S13 as a “conciliatory process”. I just wrote down: “Ha!” “

And here is a part from Mark Fournier’s post:

“A couple of intervenors in favour of state censorship put in their two cents and then Richard Warman got up and complained that just because the CHRC did a terrible job of administering Section 13 his rights shouldn’t be violated. The irony was breathtaking.”

Read the whole reports – along with what people are saying about it – at Free Dominion!

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Ruling in the Warman V Fournier Copyright lawsuit

November 1, 2011 — xanthippa

CORRECTION: THE FOURNIERS WILL NOT BE BACK IN COURT LATER THIS WEEK.  (I was confused by a header from an earlier email – my apologies for the my error.)

(Sad, isn’t is, that I have to specify which of the Warman lawsuits against the Fourniers this is about….)

This is the ruling in the motion to suppress a number of ‘things’ from the Fourniers’ defense statement in the lawsuit Mr. Warman is pursuing against them because he thinks that they have violated his copyright by:

  • inline-linking to his image (while he had full control of the image and could have blocked in-line linking)
  • not taking down a re-posting 0f an article fast enough after he acquired copyright over that article in an out-of-court settlement
  • posting on their site some public documents which quoted the above article

OK, OK – I’ll not stretch the suspense out any longer.

The Fourniers won!!!

It’s not the whole case – just this motion. But, it means that the trial lawyer will have the ability to weigh all the evidence and decide for her/his own self as to what is relevant and what is not.

So, this is a victory for justice!

Small victory, but victory none-the-less.  Especially since Connie Fournier – a non-lawyer – went up against the smooth and charismatic Mr. Katz (without whose extraordinary lawyer skills most of Mr. Warman’s lawsuits would have been summarily dismissed as frivolous – in  my never-humble-opinion) and won!!!

In that sense, it is big personal victory for the Fourniers.

Congratulations, Mark and Connie.

P.S. – The Fourniers will be in Federal Court in Ottawa again on Thursday, 3rd of November, 2011.

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The ‘Warman v. Fournier’ court hearing for a motion in the copyright infringement lawsuit

October 16, 2011 — xanthippa

It has taken me more than a week to write this up – my apologies.  I was hoping the decision would come soon and that I would be able to report it along with what I had witnessed in the courtroom.

This was a hearing for a motion in the lawsuit that Richard Warman is bringing against the Fourniers for infringing his copyright on 3 grounds:

  • inserting an ‘inline link’ to a picture of Richard Warman (the picture remained on Mr. Warman’s site and under his full control, including the ability to remove it and/or to block inline links to it)
  • re-posteing a newspaper article which Mr. Warman had subsequently acquired copyrights of in an out-of-court settlement (the article was re-posted before Mr. Warman had copyright control over it and was removed as soon as his lawyers had demanded this)
  • posting public court documents which included sentences from the abovementioned article as part of the public record

The full background to this post is here.

The motion hearing was my first experience in Federal Court – so far, all my spectating has been done in Ontario Provincial Court.  I must admit, the atmosphere is a bit different, the security a bit more along the lines of what one might expect.  The courtroom, however, was not at all equipped for spectators:  instead of the benches with built-in headphones (for translation, if the case was being tried in French), 10 office chairs were placed along the back wall of the courtroom, appearing more as an afterthought than anything else.  Most of these were occupied by people waiting to present future cases – their particular type of grooming suggested they were lawyer-types and/or their aides.  I would appear to have been the lone spectator on Courtroom #2 that October 6th morning.

The motion hearing was presided over by the Honourable judge R. Aronovitch.

Mr. Richard Warman was represented by the ever-charismatic Mr. Katz.

Mrs. Fournier spoke on behalf of herself and her husband, as they were representing themselves.

This was not a long hearing:  each side made a short presentation of how they saw the situation and an even shorter rebuttal.

(As it is easier to follow what happened if I focus on each thread of the argument and follow it rather than report on the proceedings sequentially, I will jump back and forth in time in order to follow each ‘thread’.)

Mr. Katz was the first to speak; he was presenting the reason for this motion:  Mr. Warman had filed the copyright lawsuit against the Fourniers and they had filed their statement of defense (OK – there are proper legaleese terms for these, but I am not trained in the law whatsoever, so, please, do not take what I write as anything more than an untrained person’s observations – and if you can correct me on some points I got wrong, please, I would be grateful if you did).

When the Fourniers filed their statement of defense, this document included some phrases that, according to Mr. Katz, were irrelevant and prejudicial – and which should, therefore, be removed from their statement of defense.  If I recall  Mr. Katz’s words correctly, their primary argument was that these paragraphs (named in the motion) are clearly not relevant and are simply character assassination of his client.

Mr. Katz asserted that some of the these paragraphs are describing actions of third parties and not those of Mr. Warman, others are simple hearsay and would better be addressed in the cross-examination rather in the submission.  There was a little back-and-forth with the judge on the salient points of hearsay and cross-examination.

Mr. Katz also said that Mrs. Fournier had originally agreed to longer cross-examination time, then reneged on her word:  Mrs. Fournier seemed surprised by this claim and said she is agreeable to setting the cross-examination time to whatever length the judge would like to specify.

The Fourniers’ main argument was that it was best left up to the judge who would preside over the lawsuit itself to read the evidence and then to decide what is and what is not irrelevant.  Removing the offending paragraphs earlier would prevent the judge from making that decision – and this is why it should all be left in.

Mr. Katz said that the Fourniers were making claims that by bringing this copyright infringement lawsuit is somehow an abuse of judicial process, that he is being disingenuous and harassing them – when his client is only trying to protect his rights to the literary work (the article).  He charged that it was not his client but the Fourniers who were abusing the judicial process by trying to have this motion dropped.

Mrs. Fournier defended their position by pointing out that Mr. Warman had initiated 64 lawsuits/actions similar to this one, several of these against themselves, many still under way.  It was important to their defense to paint a complete picture of Mr. Warman’s activities related to these lawsuits/actions, including his openly and publicly stated desire to sue people he finds annoying.

(If I am not mistaken, the phrasing was somewhat along the lines that the more annoying Mr. Warman finds someone, or the more fun prosecuting them would be, the higher up his target-list they get moved up, regardless of anything else.  However, the website which documented this quote, along with many other things related to Mr. Warman, has recently been shut down.  This makes it impossible for me to verify the precise wording and reference it, as I normally would.  My apologies.)

Without presenting this full picture, including speeches to radical and militant groups with history of lawlessness and violence, it is impossible to demonstrate how Mr. Warman’s current activities follow the pattern of ‘maximum disruption’ which he has publicly ascribed to himself – and which include the subversion of the courts to promote his own political agenda. (Again, I am paraphrasing, but this, to the best of my understanding, is the main thrust of the Fourniers’ argument.)

It is always difficult for lay people to represent themselves in court.  As such, Mrs. Fournier explained that she put great weight to what the opposing counsel said.  When he had sent them the notification that some parts of their statement of defense were inadmissible from a legal point of view, she gave it great credence.  However, she thought it integral to their case to let the judge who will hear the case see all the evidence and decide for him/herself.  Yet, she never doubted the opposing counsel’s word:  which is why she was surprised to see that only some of the paragraphs that Mr. Katz had told her were inadmissible were no longer being objected to on these grounds.  If they were legally inadmissible at one point, as he had advised her, why were they acceptable now?

At this, the judge leaned forward and asked for clarification:  did Mrs. Fournier mean that there was a difference between what was originally asked to be removed from the record, and what was actually included in the final motion?  Yes, that was it:  only some of the phrases/paragraphs that were in the original motion to strike from the record were in the latest draft, others were no longer being objected to.  This seemed to intrigue the judge – but I am not certain what the legal impact of this difference would be.

Mr. Katz did not, to the best of my recollection (and notes), address this point very clearly.  There was another point which had been raised at that moment which seemed to occupy his attention:  it was to do with costs and Mr. Katz’s role in them.

There is a rule (404, unless I am mistaken) which states that if the opposing counsel makes some mistake which ends up costing people money, then that opposing counsel must pay those costs.  Not the client, but the counsel.

The Fourniers claimed that there was some sort of an irregularity in how they had been served with this lawsuit:  an irregularity which cost them money and which was Mr. Katz’s fault.  If I understand this correctly, this irregularity was also a subject of a complaint the Fourniers lodged with The Law Society of Upper Canada, the body which licenses lawyers to practice in Ontario.

Mr. Katz responded that the complaint was trivial and was dismissed without him having to even attend to it.

Mrs. Fournier disagreed with that, stating she had correspondence from the Law Society of Upper Canada which stated that they will only attend to the complaint based on what the judge’s ruling will be:  if the judge will rule that the irregularity had indeed been Mr. Katz’s fault and awarded Fourniers financial compensation for the damages,  they would look into the complaint.  So, in her words, it was not dismissed but rather will either go forward or be dismissed, based on what the judge finds in the courtroom.  Since it relates to the costs in the lawsuit, it will have to be the judge in this case whose opinion will determine how the complaint proceeds.

Mr. Katz was very focused on this part of the discussion, though he did not seem as cool and collected as he usually appears in the courtroom.  He seemed downright anxious – and, who would not be, with such a serious charge against him?  Once the topic of this irregularity and its consequences was brought up, he focused most of his attention and arguments in that direction.

This was a very interesting – if short – courtroom appearance.  All was over by 10:20, less than an hour from when it started.

To recap:

Mr. Warman charged (through his lawyer, Mr. Katz) that much of what was in the statement of defense was irrelevant and prejudicial and should be excluded from court documents.  The defendants are abusing the judicial process by including inadmissible statements in their statement of defense.

The Fourniers defense had 3 parts:

  • Mr. Warman wanted relevant information taken off because he did not want his own words which demonstrate his record of bad behaviour to become part of the public record and thus widely known
  • in order for his actions to be fully understood, Mr. Warman’s doctrine of ‘maximum disruption’ must be part of this record to demonstrate how he is abusing the justice system to promote his political aims
  • the reason Mr. Warman wants this evidence suppressed is because by having it stricken, he is obliquely depriving them of evidence they had planned to use in their defense in 3 other lawsuits which Mr. Warman has launched against them.

All the evidence should be left in:  if the judge decides it is irrelevant, it can be removed at that point.  This decision should rest with the judge.

We certainly live in interesting times!

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The Fourniers will set another Canadian legal precedent

October 12, 2011 — xanthippa

It is the nature of laws – at least, in free societies – to be passed in response to new developments in society.  That is why, in the common law tradition, legal precedents affect not only how old laws are applied but also how new laws evolve.

This creates a feedback mechanism:  the laws affect how the rules of society evolve, the rules of society affect how the laws evolve.

Currently, the courts are trying to interpret the existing laws to accommodate the changes due to our ‘communications revolution’.  Since more and more of our public and private communication as well as our public and private information is online, the impact these ruling will have over the coming decades is truly profound.

This makes Connie and Mark Fournier’s ongoing legal battles very important to all of us:  if you are reading this on a computer, then the rulings in their legal battles will affect the rules under which you live your life.  And not just in Canada – the world is fast becoming one electronic family and slowly but surely, internet-affecting legal precedents set in one Western country reverberate in the whole world.

That is why I have started to document the Fourniers’ legal journey – even though I have no legal training and my understanding of what is being said in court is imperfect.  But, if I document it to the best of my ability, perhaps others who are more knowledgable will be able to comment  on what I have witnessed and explain it better to all of us!

Last week, the Fourniers were in Federal court in Ottawa – charged with copyright infringement by Richard Warman.

To my mind, some of the things the Fourniers are charged with are difficult to understand – but one of them is very clear and will very likely set the legal precedent for Canada on a very hot topic: ‘inline linking’.  The legal precedent on copyright issues regarding the insertion of an inline web link has been ruled by the US Court of Appeals for the Ninth Circuit, clarifying that inserting them does not violate US copyright laws.  For search engines, anyway…

There has not been a comparable ruling in Canada – yet.

Richard Warman has brought a lawsuit against the Fourniers for violating his copyright in 3 separate ways.

One – and, perhaps most important regarding the abovementioned legal precedent – is for having permitted the insertion of an ‘inline-link’ on the Free Dominion forum they operate which linked to a picture of Richard Warman, on his own website.

In other words, the picture was always posted only on Richard Warman’s own personal website and he had full control over it.  An inline-link was posted on Free Dominion which would show the reader Richard Warman’s picture from Richard Warman’s site.  The picture was, at all times, on Mr. Warman’s server and under his complete control – he could have, at any time, blocked inline-linking to the picture…yet he chose to permit inline-links to the picture to function.

Inserting the inline-link on Free Dominion, according to Mr. Warman’s claim, constitutes displaying his image without permission and thus infringes on his copyright.

Therefore, the ruling on this will have important implications for internet use in Canada, perhaps further.  Should the ruling go against the Fourniers, then any time anyone inserts a hot-link when they comment on something on a blog or site you control, you could be liable for copyright infringement.

The other two counts of copyright infringment Mr. Warman is suing the Fourniers for are regarding words, not images, and words which were posted on the Free Dominion site and not words that were simply linked to.

Jonathan Kay had written an article for National Post in which documented how, at various court hearings, it was revealed that Mr. Warman appears to have made some highly inflammatory racist, misogynistic and anti-immigrant comments (specifically targeting Senator Anne Cools) on a white supremacist website/forum.  (I myself have heard the same assertions during the ‘Vigna v Levant’ defamation hearing, where Mr. Levant had clarified that to the best of his knowledge, it was not Mr. Vigna but rather Mr. Warman who was the card-carrying member of a neo-nazi organization and the author of this most vile hate speech directed against our first black female Senator.)

This newspaper article was re-printed (with credit – but it was not stated during the hearing if fully or partially) on the Free Dominion forum.

Mr. Warman sued the National Post for publishing that article and the National Post and he reached an out-of-court settlement with them.  As part of this settlement, Mr. Warman got the copyright of the article.

Once he owned the rights to the article, Mr. Warman’s lawyers contacted the Fourniers and demanded that they remove the article from their website.  This they complied with immediately, as was confirmed by Mr. Warman’s lawyers.

Despite this, at some subsequent time, the Fourniers were contacted by Mr. Warman’s lawyers and were requested to pay some sum of money to Mr. Warman to avoid a lawsuit for having posted the article in the first place.  The Fourniers believed that they had complied with the request to remove the offensive material in a timely manner and therefore did not think they were obligated to pay any money as well.  Subsequently, Richard Warman filed a copyright violation lawsuit against them on these grounds.

The last, third count of copyright violation has me puzzled more than the previous two.

The Fourniers had posted on Free Dominion sections of court documents – public documents, to the best of my knowledge – which had contained the phrases on the basis of which Mr. Warman was taking legal action against someone (the phrases he had found offensive) which had also been published in the article from point two.  Even though the Fourniers had clearly published these phrases as part of a public document, as they were also part of the article which Mr. Warman’s lawyers asked them to take down, Mr. Warman had charged them with copyright infringement for having posted them.

This, in a nutshell, is the background to this particular lawsuit Mr. Warman is pursuing against the Fourniers.

The Fourniers had filed their defense statement with the court – representing themselves.  Mr. Warman’s lawyers had informed the Fourniers that some of the things which they listed in their documents were inadmissible in court and asked the Fourniers to remove them.  The Fourniers refused to do so, because they believe this information to be relevant to their defense and would like the judge in the case to be the one to decide what is admissible and what is not.

Mr. Warman’s lawyers then filed a motion to have parts of the Fourniers defence statements struck from the record (not all the bits they had originally wanted removed, but still a significant amount)- something the Fourniers believe will affect their defense not only in this copyright violation lawsuit but also in three additional lawsuits (for defamation, I believe) that Mr. Warman is pursuing against them.

Last week, there was a hearing in federal court for this motion – a most interesting event in its own right (which I had gone to see for myself and will write up very, very soon, I promise!).

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6th of October, 2011: The Fourniers are in court in Ottawa

October 5, 2011 — xanthippa

Connie and Mark Fourniers are coming to Ottawa for a Motion in the Copyright lawsuit Mr. Richard Warman is bringing against them for using his own words in self-defense against other lawsuits he has brought against them.

I may have this completely backwards, but, to the best of my understanding, Mr. Warman accused the Fourniers of defaming him.  The Fourniers used Warman’s words to prove the truth of their statements – since truth is still defense against the charge of defamation.  Mr. Warman says that by using his words, they are infringing on his copyright on the intellectual property of the ideas he expressed.  And he is suing them for it.

Yes, it sounds ludicrous – but that does not necessarily imply I have misunderstood the main point…

The Fourniers will be coming to Courtroom #2 on the seventh floor of the Sir Thomas D’Arcy McGee Building, 90 Sparks Street at 9:30 a.m.  If you can, come show them your support.

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The Ottawa Citzen: ‘Blog vs. Blog’

September 13, 2011 — xanthippa

Wow – the MSM is taking note of the Baglow v. Free Dominion decision!

This is most excellent – the fight for freedom of speechin general and the Fourniers’ and Smith’s battle in particular is of great importance to all of us.  It is gratifying to see a mainstream newspaper pick the story up.

If you have missed it, I have written up this ruling here.

H/T:  Andrew Phillips

 

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The ‘Baglow case’: ‘Motion for a Summary Judgment’ hearing (Part 2)

July 22, 2011 — xanthippa

See here for ‘Part 1’, which includes the background, the facts of the case (as agreed upon by both sides in the case) and the legal point of this hearing.

July 21st, 2011 was a blisteingly hot day in Canada’s capital.  The temperature outside climbed up to 36 degrees Celsius and the humidity stood at close to 100%.

Just before ten in the morning, when I arrived at the corridor outside of Coutroom 36, where the hearing was to be held, the air conditioning at the elegant Elgin St. courthouse was already having trouble limping along and the temperature indoors was significantly above room temperature (defined at 21 degrees Celsius) and bordering on uncomfortable.

When I arrived, many people were just filing out of the courtroom:  another case was being heard first, and this would take intil at least 11:30… when the court would take its first break.  This dampened the spirits of the little group of people who, like I, had come to show support for the Fourniers and ‘Peter O’Donnel’ from FreeDominion, the defendants in a defamation suit brought against them by ‘Dr. Dawg’:  many could not stay the full day…

Among the friendly faces, I recognized Fred Litvin of the Free Thinking Film Society, who was one of those who could not stay the full day. Andrew Phillips, leader of the Libertarian Party of Canada, as well as longtime freedom of speech supporters Roland and Fran (plus your never-humble correspondent) stayed for the duration of the hearing.  As far as I could tell, nobody stayed to support Mr. Baglow.

I was curious to see John Baglow – having never laid eyes on him before.  He wore a crisp blue shirt (curiously evocative of ‘the working class’ and of ‘cowboys’ at the same time) with aviator-style sun-glasses in place of a tie, dark pants and cute black cowboy boots with the most adorable little metal trimmings.  In his hands, he held a summer-weight (possibly straw), white, fedora-type hat.  His whitish-gray mustache matched his hair and I could read nothing from the neutral expression on his face.  John Baglow, the man, remained a closed book to me.

John Baglow was represented by Peter Francis Burnett – a lawyer who struck me as competent and who has a very pleasant, confident voice.

The Fourniers were represented by Barbara Kulaszka, while ‘Peter O’Donnel’ (who had flown in for this hearing from BC) represented himself.  The Fourniers are being sued for hosting the forum on which the insult was published, ‘Peter O’Donnel’ for having posted the insult.

The case was presided over by Mr. Justice Annis, J. (as the sheet outside the courtroom announced).  The judge struck me as sharp, very sharp, and quite well versed in the internet, the blogosphere and the issues (and lingo) surrounding it.  In other words, a judge who was knowledgable of the context and its complexities – something that is always a good thing, but which unfortunately does not always occur.  After all, judges cannot be experts in everything…

I have exactly zero legal training – therefore, my observations must be unedrtood as those of a layman and nothing more.  I am working from an imperfect understanding, and the few notes I took during the hearing.  I will do my best to be as accurate and to present the case as correctly as possible with my limited understanding, but I am bound to make mistakes.  If you can correct me, please, post a comment doing so!

Also, rather than presenting the case sequentially, I will address the individual ‘major points’ raised.  It seems to me this way, it will be easier to follow the various threads of reasoning.

Ms. Kulaszka was the first person to address the court, as it was she who had filed the ‘Motion for Summary Judgment’ which this hearing was for.  She was arguing that as both sides had submitted affidavitsin which ‘their side’ of the story was fully explained, and that since all the basic facts of the case are aggreed on by all the parties involved, all the facts relevant to the case are before the judge:  the judge can, therefore, make a summary judgment based on this material and there is no need for a full-blown, costly trial which would drag on for years.

She spent a long time explaining the context of the ‘debate’ and the various insults traded, and so on.  She described the trail – a debate about the ‘Omar Khadr’ affair which started on the Jay Currie blog (no longer up), moved from there to ‘Dr. Dawg’s Blog’ (where it degenerated to insults, back and forth), and from where it moved on to FreeDominion, a discussion forum.  None of these facts were in dispute, by any of the parties.

As I understand it, if the facts in a case are all clear and no further evidence needs to be presented, it can be ruled on by the judge directly.  If there are points which need closer examination, then the judge will rule that the longer, costlier process of a full trial will take place.  This is what the defendants had requested and what the plaintif was fighting against:  which is what this hearing was about.

Ms. Kulaszka cited ‘the McVeigh case‘ (see my list of some legal precedents on why I think it was relevant, and which may have taken place in BC, but under similar rules of Civil Law procedures to Ontario’s) as an example where a judge had all the facts in place and could rule on the whole case based on the evidence already submitted.

Mr. Burnett implied that it was silly of her to cite the McVeigh case, because there, the defendants lost!

Ms. Kulaszka pointed out that she raised the case only as a precedent in that was similar and demonstrated that the ‘mini-trial’ format of ‘Summary Judgment’ was applicable in this case.

The next major point of disagreement between the two sides, as I understand it, was a rather salient point over where a particular line lies…  Mr. Burnett argued that IF the words that were used against his client COULD be construed as defamatory, then a full-fledged trial must take place to decide if they were indeed defamatory in this particular instant.  Ms. Kulaszka argued that a full trial should only be held IF there are FACTS that are disputed:  if all parties agree to the FACTS, then the judge has all he needs to make the ruling.

The judge asked a lot of questions of both sides on each of the points raised.  He understood perfectly the context – he seemed to either be someone who follows the blogosphere or had done an excellent job educating himself on it in depth, including the ‘ascerbic’ debates in comment sections that can degenerate into name-calling matches.  He characterized the case as such an instance, and that he simply has to decide whether one of the parties had ‘crossed the line’ during the name-calling…

In any case of defamation, the plaintiff must demonstrate that he/she had indeed had their reputation diminished as a result of the words of the defendants.  Here, each side cited a different case as a precedent.

The defence cited the ‘WIC Radio case’ – a shock jock radio guy had, during a ‘live debate’ with an activist, said something that she took offense to and she sued for defamation.  The Supreme Court of Canada ruled that any reasonable person would have understood this to be ‘name calling’ and not as ‘a statement of fact’ – so the activist’s reputation had not been damaged.  Ms. Kulaszka drew the parallel to this situation:  it was a ‘debate’ which degenerated to ‘name-calling’ and was perfectly understood as such by all the readers of the blog/forum.  No harm – no foul!

Mr. Burnett raised a different case – Black v. Breeden.  In this case, Conrad Black sued a number of newspapers for defaming him.  The ruling (as I understand it) was that since the words were printed in ‘The Globe And Mail’ newspaper, the test for whether they are defamatory was whether an average reader of ‘The Globe And Mail’ newspaper would take them to be so.  As in, believe them/take them as ‘fact’ –  and thus ‘defame’ Mr. Black.

Mr. Burnett’s argument was that since the ruling took the opinion of the ‘average reader of The Globe And Mail’ to be the ‘test’ for defamation in the ‘Black case’, that was also the standard in this case.  As in, the opinion of the ‘average reader of The Globe And Mail’…

Ms. Kulaszka argued that the ruling was that ‘the opinion of the average person reading the medium in which the words were delivered’ was the ‘precedent’ set by the ‘Black’ case:  since this was delivered in the Canadian political blogosphere, it was the opinion of the average Canadian political blogosphere reader which was pertinent – not that of the ‘average reader ofThe Globe And Mail’.

The ‘Vigna v. Levant’ case was also raised as a potential precedent.  However, I am confused about who was the first to raise it.  It was certainly referenced by the judge quite a bit when he was asking questions.  The judge had also asked both parties to email him by Monday any other ‘interesting blogger-cases’ which he could review for precedents.

I see that the word count is going dangerously up…so I will be more brief.  Of course, all the usual ‘defamation’ bits were touched on and argued, that posting on the internet ‘contitutes publishing’, was there malice in the insult, etc. – and were argued well on both sides.  However, I would be remiss if I were not to cite some details which set this particular case apart from others and make it very unique indeed.

These two very specific details concern the actions of the plaintiff – and how the defendants interpreted them.

Apparently, the defendant, ‘Peter O’Donnel’ had not done anything to link the persona of ‘Dr. Dawg’ to the real-life person, John Baglow. As such, Mr. O’Donnel told the judge that his insult was directed at the ‘online persona’ of a ‘typical left-wing blogger’ – not the real-life person of John Baglow, whom he did not know or even conceive of as an individual.

It was Mr Baglow himself who had created a ‘sock-puppet persona’ called ‘Miss Miew’ (sp?), who purpoted to support ‘Dr. Dawg’s’ arguments – and who, as ‘Miss Miew’ had ‘outed’ him by identifying ‘Dr. Dawg’ as ‘John Baglow’.

1.

If I understand this correctly, ‘Peter O’Donnel’s’ defence is that the insult was not defamatory, but, even if it were, it was directed at the anonymous persona of ‘Dr. Dawg’ and that it was John Balglow’s own action in linking his real-life name to the persona in that discussion forum – the defendant’s own action – which could potentially have been harmful to his reputation IF the insult was indeed defamatory.

The judge asked for clarification on this point several times:  and yes, even the plaintiff agreed that it was his action which linked his name to his online persona in the forum.

2.

The Fournies are being sued for running the forum – and thus for being the ones who had publishe the ‘defamatory words’.  However, they were not the only ones!

The plaintiff himself had also published these very same words, in the comment section of his blog – and left them up for many, many months.

The Fourniers claim that since the defendant had himself published these words, about himself, on his own site, they had no credible reason to believe that the defendant had considered the words defamatory.

Mr. Baglow’s lawyer, Mr. Burnett, admitted that this was so, but proposed that the plaintiff’s own actions have nothing to do with the defendant’s culpability and must not be considered in any other context than, perhaps, in the amount of damages to be awarded.

So, there it stands.

If I may indulge in stating my own, never-humble opinion of all this….

  • The ‘debate’ started on Jay Currie’s blog – then moved to ‘Dr. Dawg’s’, where it generated substantial traffic.  89 comments on one post alone!
  • Then, ‘Peter O’Donnel’ created a discussion about it on the FreeDominion site – and the ‘debate’ moved there.  Taking the traffic with it.
  • John Baglow tried everything he could to bring the ‘debate’ back to his own site – even re-publishing the most inflammatory bits from the FreeDominion ‘debate’ back on his own site.
  • When this did not work, he complained to Connie Fournier and demanded that she’remove’ the offensive words and, effectively, stop the ‘debate’ on the FreeDominion site…so that the ‘debate’ – and the accompanying traffic – would return to his site.
  • When she refused, he decided to punish her by suing everyone involved for defamation.

… at least, that is how it seems from my point of view!

Posted in freedoms. Tags: , , . 20 Comments »

The ‘Baglow case’: ‘Motion for a Summary Judgment’ hearing (Part 1)

July 22, 2011 — xanthippa

I have not written much lately – but some events are so important that they simply must be written about.

Yesterday, 21st of July, 2011, I went down to the fancy courthouse on Elgin St, Ottawa, to observe the ‘Summary Motion’ hearing in the civil court case where John Baglow, aka ‘Dr. Dawg’, is suing Connie and Mark Fournier of the Free Dominion discussion forum and a member of the forum who posts under the name ‘Peter O’Donnel’.

In the past, whenever I went to one or another such hearing, I would take copious notes and then write them up – along with my impressions and never-humble-opinions into a post.  Now, thanks to my clutziness, neither one of my arms is fully functional… so my notes are nowhere near as exhaustive and my account will necessarily be shorter; less of a record of what had happened and more of my impressions and opinions of what had happened.  My apologies – but that is the best I can deliver right now.

1.  Background

John Baglow blogs as ‘Dr. Dawg’ (according to his lawyer, ‘he likes dogs’) – a somewhat typical ‘left-winger’ blogger (if there is such a thing) in the Canadian political blogosphere.  From the words of his lawyer, we learned that he is a contractor who usually works on contracts for public sector unions and the Conference Board of Canada ( if I am deciphering my notes correctly).

‘Peter O’Donnel’ is a contributor to (and a moderator on) Free Dominion, one of (if not THE) oldest political opinion forum in Canada, focusing mostly on ‘little c’ conservative and libertarian issues. Free Dominion is run by Connie and Mark Fournier.

In the backdrop of ‘the Omar Khadr‘ affair, much discussion was happening in much of Canada about these happenings.  On the one hand, some Canadians thought that Omar Khadr was a child caught in a war and an unfortunate victim of circumstances.  On the other hand, many people saw him as a young man who took up arms on the side of the Taliban, who lay in wait until a US medic came to tend to a wounded person and then cowardly murdered him – and who therefore deserves to be punished in accordance with the law.

The crux of ‘the Khadr affair’ lies in Omar Khadr’s age at the time he committed the act of terrorism (and, a court of law did find that he did indeed commit one):  under some laws, he was a ‘child’ while under other laws he was an adult.  A polarizing issue, to say the least.  But this is not about Omar Khadr – it is about a discussion regarding him, during which tempers flew high and debates degenerated into name-calling ‘online-brawls’.

2.  What both sides agree about (as I understand it – if I am in error, please, let me know and I’ll amend!)

Something posted on Jay Currie’s blog (a blog with a conservative perspective, but where people of many stripes of opinion tended to exchange opinions in the comment section – but which was no longer up at the time of this hearing) sparked a discussion about the Omar Khadr affair, with many participants, two of whom were ‘Dr. Dawg’ and “Peter O’Donnel’.

The exchanges got heated, to say the least.

This discussion got moved from Jay Currie’s blog to Dr. Dawg’s blog, where the heated exchanges continued among various posters including ‘Dr. Dawg’ and ‘Peter O’Donnel’.  It was said in court that at least one of these posts where the debated continued (in the comment sections) had 89 comments, of which 33 belonged to ‘Peter O’Donnel’.

‘Peter O’Donnel’ opened a discussion on this topic on the Free Dominion discussion forum, where the bulk of the debate then moved.

Both parties called each other names.  Nasty names.  ‘Peter O’Donnel’ stated the opinion (and I AM paraphrasing) that IF one supports Omar Khadr – who had indeed been convicted of terrorist activity on behalf of the Taliban – then one is ‘a vocal supported of the Taliban’.  (‘Dr. Dawg’ was ‘a supporter’ of Omar Khadr – one of the people who portrayed him as a victim.)

Mr. Baglow (‘Dr. Dawg’) then created a sock-puppet persona called ‘Miss Miew’ (sp?  I only heard it in court, so I may have mangled it – my apologies) who was posting in support of ‘Dr. Dawg’ and who ‘outed’ ‘Dr. Dawg’ as John Baglow by saying something to the effect of ‘Hey, this guy called Dr. Dawg a Taliban supporter – John Baglow should sue him for calling him that!’  (again, I was just listening in court and taking notes, so I am necessarily paraphrasing…)

Not satisfied with having publicly linked his own name to his online persona, John Baglow then proceeded to re-publish the exchange on his own blog. ( And, he left it up for many months.)

John Baglow contacted Connie Fournier and complained to her about the comment he had found offensive – on the Free Dominion site, that is, not from his own site.  He demanded an apology and that the comments be removed right away. Free Dominion did not apologize nor remove the comments.

Hence, the lawsuit for defamation.

3.  The ‘legal occasion’ (as I understand it)

All parties in the lawsuit had submitted affidavits in which each one of them explained ‘their side’ of the issue.

In Ontario (where this case is being heard), the Ontario Rules of Civil Procedure contain something called ‘Rule 20’ (see the ‘Some legal precedents…’ page at the top of my blog for more details) which, in a nutshell, is a

‘Rule allowing for summary judgment where there is no genuine issue for trial, and the proposed revisions that would allow for an issue to be settled by way of mini-trial.’

In a full-blown trial, there is testimony, cross-examination and ‘the full works’.  It is costly and can drag on for years.

This ‘mini-trial’ is an alternative which can be used when one of the parties concerns files a “Motion for Summary Judgment’.  A real, honest-to-goodness judge (not a moderator or a semi-judge) will listen to both parties and decide whether or not the ‘facts’ of the case are all in the submissions (so there would be no need for cross-examination and so on) and some other factors (which I am not so clear about) are satisfied.

If so and the case is pretty much ‘clear’ based on the materials which had already been submitted, then the judge has all that she/he requires to pass a judgment on the case.  (This is the ‘mini-trial’.)

If not and there are facts which are in dispute or which can only be clarified through a full trial, the judge will not render a ‘summary judgment’ on the case but will instead order a full trial to be held.

On June 21st, 2011, I attended this hearing of a Motion for Summary Judgment which had been filed by the defendants in this Baglow defamation case.

It was very interesting.

Continued in Part 2.

Posted in freedoms. Tags: , , . 4 Comments »

Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 4

December 21, 2010 — xanthippa

Here are part 1, part 2 and part 3:  they set the tone (1) and cover my imperfect observation of how Mr. Katz presented the plaintiff’s case (2&3).  Again, I warn I am an untrained and uninformed observer and these are just my opinions…

We resume our tale as Ms. Barbara Kulaszka picks up the proverbial ball for the defense.  She is an extremely intelligent lawyer – certainly among the most intelligent people I have ever met.  With meticulous care, she began to dismantle Mr. Katz’s points, one by one.

Where Mr. Katz started out by referring to precedents from the US (not particularly relevant here, in Canada, as we have a different legal legacy), Ms. Kulaszka went straight to one of the most pertinent rulings on this type of a matter by no less than the Supreme Court of Canada: the  ‘Wic radio case’ .

If you are not familiar with it, here is an excellent comment/explanation of the case and its significance.  In a nutshell, it sets a precedent to ‘thaw’ some of ‘the chill’ surrounding freedom of speech:  a radio guy and an anti-gay-literature-in-the-schools person had a debate on air, during which the radio guy called her all kinds of names (including a Nazi) and, in a fit of hyperbole, suggested or implied she would condone violence against gays.  She sued.  Lost.  Won on appeal.  Supreme Court overturned the appeal and said original ruling should have stood.

One of the Supreme Court Justices even went as far as to suggest they should have gone further, been stronger in the wording of their ruling to side with the freedom of speech versus the defamation thingie.  Public figures, following the Wic radio case, were fair game for all kinds of criticism to the point of name-calling.  The danger of ‘chilling public debate’ was so great and so very detrimental  to society that public figures – or figures who put themselves directly into public lime-light – would simply have to grow thicker skin.  At least, that is my layman’s understanding…

As Mr. Katz had (during his bit) kept insisting this is not about ‘freedom of speech’ but Mr. Warman’s reputation, and as he claimed that Mr. Warman is not, indeed, a public figure but rather ‘just a private citizen’, Ms. Kulaszka began to chip away at his case from here.

Even though Mr. Katz tried to define a ‘public figure’ to be ‘elected officials only’, Ms. Kulaszka (pronounced like ‘Gulash’, but with a ‘K’ sound in the beginning and ‘ka’ sound added to the end) pointed out that Mr. Warnan had, indeed, run for public office in the past. But she did not get side-tracked into a discussion of whether ‘running for office’ is equivalent to being ‘an elected official’ and thus giving any weight to Mr. Katz’s bogus definition – nobody in their right mind was buying into it anyway.

Instead, she had focused on making  her own , very valid, points!

Ms. Kulaszka presented all kinds of evidence (including huge ‘featured’ article in the Ottawa Citizen with a huge photo of Mr. Warman) that Mr. Warman had, through his own actions (including repeatedly using Section 13 of the Human Rights Code to persecute people whom he perceived as not believing the ‘proper’ things)  propelled himself into the public forum.  Therefore, he is no longer ‘just a private citizen’.  The name Mr. Richard Warman is well known in Canada. His image is well recognizable.  In newspaper articles, Mr. Warman describes himself as a community activist.

The Wic radio case demonstrates that ‘community activists’ do, indeed, legally qualify as ‘public figures’…and that the Supreme Court of Canada itself has ruled that calling a ‘community activist’ all kinds of nasty names (especially as hyperbole) is not actionable on the grounds that they may be/are defamatory…

The conclusion is inescapable:  Mr. Warman is, indeed, a ‘public figure’!

Therefore, criticism of Mr. Warman falls into the category of ‘political speech’.

All the items Mr. Warman is seeking to sue for ‘defamation’ for are within the scope of the ‘Wic case’ and, therefore, not actionable as defamation by a public figure.

Therefore, ‘freedom of speech’ trumps protecting Mr. Warman’s reputation from defamation.

Thus, ‘prima facie’ for a defamation case has not been established.

Which means Richard Warman’s side has not met ‘the test’.

Therefore, no disclosure of identities should be court ordered.

Bing.

Bing.

Bing.

Ms Kulaszka lined up the dominoes and let Mr. Warman’s own words ‘push’ the first one!

One cannot simply state ‘these words are defamatory’:  one must actually prove it.

Next…

Since one of the things Mr. Warman’s defense team seemed to have found most defamatory was that he had been called ‘a Nazi’, Ms. Kulaszka brought out some excellent examples of how the term is currently used in popular culture.

Like, what is the deal with the ‘Soup-Nazi’ on Seinfeld?!?!?

Calling the vendor a ‘Soup-Nazi’ did not, in the least, imply that the character had somehow subscribed to the ideology of the National Socialists:  rather, it described his humourless and intolerant behaviour!

Building on this, she referred to submissions to the court that demonstrated that this was the manner in which the term was typically used on the Internet, crowning it with describing Godwin’s Law (quoting from Wikipedia):

It states: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”[3][2] In other words, Godwin put forth the sarcastic observation that, given enough time, all discussions—regardless of topic or scope—inevitably end up being about Hitler and the Nazis.

As Godwin’s Law was formulated back in 1989 – out of frustration from using the term ‘Nazi’ so frequently and indiscriminatingly in the discussion fora, it is clear that calling someone ‘a Nazi’ in this context could  not possibly be misunderstood by anyone as in any way being ‘realistic’.  It would most certainly not affect someone’s reputation!

And Ms. Kulaszka did not end there, quoting from several ‘liberal’ websites, including ‘BigCityLib’, to demonstrate the ‘common usage’ of this and related terms (like ‘brownshirt’) among all ‘stripes’ of bloggers – not just ‘right-wing’ ones or those posting on Freedominion.

‘Vulgar abuse’ is not ‘defamation’.

Systematically, Ms. Kulaszka addressed the 4 points the plaintiff had to establish, targeting each of the arguments made by Mr. Katz.  And, demolished them.

Bing.

Bing.

Bing.

She saved the argument I found most powerful for the very end…

People craft an ‘anonymous’ identity for themselves online – but that does not mean that they only use that identity in one place.  Many – if not most – people who spend a significant amount of time online will use that same crafted identity in many different online communities:  from discussion fora (like FreeDominion) to blogs to support groups.  Support groups for serious issues, where other survivors of things like sexual abuse or addiction help each other overcome some very difficult, painful and intensely personal issues.

It is precisely because of this perceived anonymity that people are not afraid to seek help, while they are protected by this online anonymous label.

If their identity from FreeDominion is revealed, their anonymous identities (the label they use online) (and/or ip address which will also identify them) will necessarily be published alongside their real-life name!

Then, everyone and anyone will be able to trace them:  from friends, relatives and neighbours to employers – and on and on.

Revealing their identity to Mr. Warman, so he may proceed with a defamation suit, must be weighed against the potential damage which could be done to the anonymous posters if  it became known what they had anonymously posted not just on FreeDominion, but on every other site on the internet.  Including sites that may deal with such intensely personal topics as incest survivor, and so on.

It is only if the judge finds that the potential damage to Mr. Warman’s reputation (should he not be able to sue for defamation) is greater than the potential damage to the anonymous posters should their identities be revealed – only then would the 4th point of Judge Wilton-Seigel be met.  Only then should the court order for the identities to be made public.

This really struck home to the judge.  She asked if there were means through which this additional information about the anonymous posters could be kept private, if their identities were published.  And, she was very pensive when she found out it would not be possible…

With that, Ms. Kulaszka finished her presentation and the judge broke for lunch.

Following the lunch break, with everyone refreshed, it was time for Doug Christie to speak.

Despite the Warman camp’s earlier objections, the judge had ruled that Mr. Christie, who represents some of the people who had posted comments on the Freedominion site, may briefly address the court as his clients rights will have been impacted by any ruling on this motion.  And, Mr. Christie came in, no hold barred!

Actually, I think Mr. Christie had pointed out some of the most important ‘bits’ which had not already been ‘demolished’ by Ms. Kulaszka (her time was limited…).  And, he addressed them most eloquently and in terms even a ‘legal ignoramus’ like I could ‘get’ his points!

Earlier, Mr. Warman’s most excellent lawyer, Mr. Katz, had referenced ‘the Brown case’.  Now, Mr. Christie pointed out that Mr. Katz should have noted the footnote in the ruling on that very case:  rhetorical hyperbole are not actionable!

Mr. Christie also noted some Supreme Court ruling (I could not take notes fast enough to record the detail here) that ‘adjectives constitute comment’.

(Now, some of the other spectators there that day had pointed out during the lunch break, Mr. Warman wished to sue people who had stated he ‘had behaved LIKE a Nazi’ – not that he WAS a Nazi, but rather that his behaviour was similar to the behaviour of Nazis…..  and that the term ‘like’ – wording used by the plaintiff in this motion – defines ‘comment’.  I am not sure if Mr. Christie’s point referred to this, or to another part of plaintiff’s case.)

Mr. Christie stressed that in order to have a case for ‘defamation’, the statement made must be such that it would be likely to be taken ‘at face value’ by anyone reading it (as that is the only way it could be detrimental to one’s reputation) – which, in these cases, it clearly could not be.  The postings were merely vitriolic, could not seriously be ‘taken at face value’ and thus could not damage reputation!

Next, Mr. Christie had returned to one of the terms Mr. Katz had vexed most poetic about:  the one which Mr. Katz claimed his client’s reputation was defamed through suggestion of sexual impropriety/deviance – something that one cannot realistically defend against without harming one’s own reputation even more….

Mr. Christie said that during the lunch break, he took the time to look up the term in question.  And, he could not – and he named a number of the ‘standard’ dictionaries – find the term ‘facophiliac’ in any of them!  (Please excuse me if my spelling is imperfect – taking ‘real-time’ notes is harder than it seems!)

In other words, there is no such word!

It is a ‘made-up’ word with no real, definable meaning!

And, according to our laws, you cannot actually defame someone by calling them something that is not a real word!!!

If I am not mistaken, that one got a giggle from the judge – perhaps because Mr. Katz had belaboured this insult so much….going on and on and on about how very defamatory to his client’s reputation it was to be called this.

“Incoherent statements cannot carry a defamatory meaning because they carry no meaning:  they are incoherent!’

This was a reference to a statement (referred to both by Mr. Katz and by Ms. Kulaszka) which Mr. Warman believes defames him.  In this statement, he is called all kinds of things from ‘communist’, ‘Iranian thug’, ‘Stalinist’, ‘Nazi thug’ and many more.  It seems rather ‘incoherent’ to seriously imply that someone is all of these things at once!  It is, by definition, an incoherent statement – and therefore not defamatory..  (OK, Ms. Kulaszka also addressed it and it seems to me that this statement clearly is either that ‘vulgar abuse’ thing (as per Ms. Kulaszka) and not actionable on those grounds OR ‘an incoherent statement’ (as per Mr. Christie) and not actionable on the incoherence grounds…..there really is no middle ground on this one!)

Mr. Christie tidied things up and pointed out that for these – and other – reasons, the ‘prima facie’ part of the 4-part-test was not met:  therefore, Mr. Warman has an insufficient case.

With a few rebuttal comments by Mr. Katz (it is not necessary to prove that people are likely to ‘believe’ the statements – as long as they contained words  that had, at some point in time, in other cases, been deemed ‘defamatory’ then this part of the case has been met) and Ms. Kulaszka (Mr. Katz had started out pleading ‘context’ – and now wishes to deny it and go on words alone, but the meaning of words changes over time so the time/place/context are essential), the hearing was over.

My opinion?

It is only Mr. Katz’s considerable skill and eloquence that has prevented this thing from having been kicked out of court long ago!

But then again, I am not a lawyer…

 

 

Posted in freedoms, opression, politics, society, technology. Tags: , , , , , , , . 2 Comments »

Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 3

December 9, 2010 — xanthippa

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

Part 1 is here. Part 2 is here.

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….

Posted in freedoms, opression, politics, society, technology. Tags: , , , , , , , , . 3 Comments »
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