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!).

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

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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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…

 

 

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Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 1

December 7, 2010 — xanthippa

Today, I spent observing more ‘courtly manners’.

In the court-room, that is.

With Madam Justice Blishen presiding over the next installment in the ‘Warman v Free Dominion’ saga.

Background:

  • FreeDominion is the oldest, longest-running online message board in Canada which deals with political matters.
  • Richard Warman is a former Canadian Human Rights Commission lawyer and the most frequent user of Canada’s Human Right’s Legislation’s controversial ‘Section 13’, often described as ‘the censorship clause’.  Richard Warman has also personally pursued complaints under ‘Section 13’ where he was not the ‘injured party’ – on the grounds that there could, one day, be an injured party – and collected a tens of thousands of tax-exempt dollars in ‘damages’ as a result.
  • Richard Warman has also initiated tens, perhaps hundreds, of civil lawsuits against people whom he perceives as having slandered or defamed him
  • Many people on the internet call Mr. Warman all kinds of things….some of them not nice things.
  • Several people have made posts on FreeDominion which Mr. Warman believes defame him – and he has attempted to sue them, as well as the people who run the FreeDominion site, Mark and Connie Fournier.
  • As they have posted under pseudonyms, Mr. Warman has not been successful in discovering the identity of all the people who posted the comments he believes to be defamatory.  He has therefore demanded that the Fourniers reveal to him the identities /IP addresses of these anonymous people, so he can sue them
  • Earlier this year, in an appeal, FreeDominion successfully argued that they should not be expected to just hand over this information when asked:  a ‘prima facie’ case has got to be made that there are indeed grounds for a lawsuit for defamation there, first!  There were two ‘other parties’ permitted to speak to the appeals court about this:  the Civil Liberties people and Michael Geist’s ‘Internet Freedom’ people.
  • THIS HEARING was to determine whether or not the conditions for the disclosure of identities of anonymous bloggers (including a ‘prima facie case’ for a defamation lawsuit in these posts) have indeed been met.

 

And what a hearing it was!

Since this hearing was to determine whether there was there was sufficient reason for the disclosure of the identities of anonymous bloggers, perhaps it is best to re-state the conditions, as per the above-mentioned appeal.  From Defamation Law Blog:

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

To reduce the anticipation a little, let me first state that the third point was not much discussed:  everyone agreed that Mr. Warman had indeed done a lot to ferret out the identities of the anonymous bloggers.  So, the arguments revolved around the other 3 points:expectation of anonymity by the posters, whether there is enough material there to proceed with a defamation suit (as in, not just a nuisance lawsuit) and last but not least, balancing of ‘legitimate interests’.

The morning arguments opened a little late:  there was another motion scheduled ahead of this hearing – one involving an almost 30-year lawsuit over some inheritance, which was in the 2nd and 3rd generation of litigants.  I suppose this set the tone a little…

This earlier motion hearing meant that Madam Justice Blishen did not begin to hear this case until two minutes to noon.  To my untrained, layman’s eyes, it looked like this was very good news for Warman and his legal team (headed up by the eloquent and expressive Mr. James Katz).  Mr. Warman kept leaving the court-room and coming back with more and more papers, which he quietly discussed with his lawyers.  Mr. Katz’s student also kept running into the room, bringing in reams of paper and passing them to her boss.

I wondered what this was all about… and I suspect the reason might have been the second lawyer, sitting on the Free Dominion side of the lawyer’s table.  The ever-loyal and very intelligent Barbara Kulaszka was, again, representing Connie Wilkins-Fournier and Mark Fournier of Free Dominion.  The other lawyer was representing several of the other co-defendants in the lawsuit – and was none other than the formidable ans wholly unexpected Mr. Doug Christie!

No wonder there was some serious scrambling from the Katz team!

As the hearing opened, Mr. Katz argued that as this is a hearing to determine if the conditions for revealing the identities of the anonymous posters has been met and not the defamation hearing itself, it only concerns the Fourniers and not the other co-defendants in the defamation suit.  Therefore, Mr. Katz suggested, Mr. Christie had no standing there and should not be permitted to address the court.

In my completely legally untrained mind, it looked like ‘they’ really really really really did not want to give Mr. Christie a chance to speak at all – more than just mere procedural jostling for position or some type of lawyer-bickering.  It almost smelled like ‘they’ were afraid of M. Christie.  And here, I thought he was best known for making good cookies…

All right – I am getting silly.  It has been a very long and exhausting day for me – if I continue now, the likelihood that I will craft my report to accommodate as many puns as possible will increase with every new line.

So, please, forgive me:  I will sign off for now and continue my tale tomorrow.

 

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