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.

Posted in corruption, freedoms, politics, society. Tags: , , , , , , , , . Leave a Comment »

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!

Posted in freedoms, politics, society, technology. Tags: , , , , , , , , , . 1 Comment »

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 »

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.

Posted in freedoms, opression. Tags: , , , , . Leave a Comment »

He Who Must Not Be Named (on pain of litigation) is at it again…

April 27, 2011 — xanthippa

You-know-who is suing people again – because he finds them ‘annoying’!

That little silly bunny will just not let up!

With his skinhead-like haircut and fascist tactics, he really does look like the member of a Neo-Nazi organization (Stormfront) that he is.  Yet, watching him in person for any length of time, the comparison to Uriah Heep (just before the 2 minute mark) crowds itself into one’s mind unheeded…

I don’t know how he can live with himself, that little tyrant-wanna-be silly bunny!

Posted in freedoms, opression, society. Tags: , , , , . Leave a Comment »

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 »

Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 2

December 9, 2010 — xanthippa

I have absolutely 0 legal training, so all these are simple observations and the conclusions and opinions are in no way expert.  I will do my best to be accurate, but these are all still nothing more than my personal observations and opinions.

Part 1 can be found here.

When I left off the tale, it was high noon and Madam Justice Blishen was listening to Mr. Katz, the lead counsel for Mr. Warman, present an argument why Mr. Christie, counsel not for Free Dominion but one of the co-defendants in the main defamation suit, has no standing at this hearing and should not be permitted to address the court.

This hearing was held solely to determine whether Richard Warman’s request that Connie and Mark Fournier, of Free Dominion, hand over the ip addresses which would reveal the identities of a number of Free Dominion members meets the 4 criteria, as set out by Justice Wilton-Siegel.  Mr. Katz argued that since that had nothing to do with the defamation itself, and since Mr. Christie was only representing clients in the defamation portion of the case, he has no standing before the court.

Mr. Christie eloquently argued that his client is being sued for defamation.  The second of the Wilton-Siegel points requires that Warman demonstrate that there is enough damaging ‘stuff’ there for a defamation lawsuit to go ahead ( establish a ‘prima facie’ case – this is to avoid ‘unjustified’ requests for identity disclosure).  If he can show that there is no ‘prima facie’ case – this second point – then there is no case against his client in the least!

Therefore, it is in his client’s interest that he address the court at this hearing.  (There was some specific word that was used in both Mr. Christie’s client’s case – so that was brought up and discussed, but to my untrained mind it seemed that the word itself was less important itself as it was only one of the ‘means’ to break the ‘prima facie’ point,)

Mr. Katz also pointed out that since Mr. Warman had arrived at a settlement with Mr. M– last Thursday, who had been Mr. Christie’s client, Mr. Christie has even less of a standing….

Mr. Christie pointed out that he is not there on behalf of Mr. Martin, but rather of Mr. B–.

In a most reasonable voice, Mr. Katz said yes, but Mr. Christie is trying to represent Mr. M.– here, and that has already been settled!

Mr. Katz truly does use his voice very, very effectively:  he conveys at least as much (if not more) meaning in the tone of his voice as he does in the words he speaks.  An excellent skill for a trial lawyer!  (My personal opinion is that without Mr. Katz’s expertize, Mr. Warman’s may lawsuits would never have gotten as far as they have…)

Of course, Mr. Christie could not be rattled that easily – and the judge ruled that since the rights of Mr. Christie’s client are going to be affected by any ruling here, she will permit Mr. Christie to address the court briefly after the other parties have made their main arguments.

Point one to Mr. Christie.

At this point, Mr. Katz complained that this is supposed to be a short hearing and now, so much of it had already been wasted by the above argument…

The man has some daring!  He was the one wasting the court’s time – now he complains about it, trying to shift the blame on to Mr. Christie!  And in such reasonable tones….  He truly is another Daniel Webster!  (The one from the story, not the Canadian lawyer…)

As he opened his main argument, Mr. Katz presented to the judge that the main aim of today’s hearing is to determine if there is a ‘prima facie’ case for Mr. Warman to proceed with his lawsuit.  (i.e. Wilton-Siegel point #2)

Point #3 – whether his client has done all he can to ferret out the identity of the anonymous posters on his own has been satisfied:  Ms. Kulaszka, the counsel representing Free Dominion, has conceded that this point has, indeed, been satisfied.

The judge pointed out that points #1 and 4 are also important. (#1 is whether or not the posters had a reasonable expectation of anonymity and the tricky one, #4 deals with weighing ‘public interest’, ‘freedom of speech’ and ‘right to privacy’)

Mr. Katz cited a precedent ruling set in Nova Scotia in June of 2010.  Unfortunately, even though I was aware of the ruling at the time, I cannot remember enough of the important details to find it, so I could link it.  (And, yes, I have spent a lot of time in cyberspace, sidetracking, while looking for this bit – so I have stopped in order to finish writing this up…)

Mr. Katz went on to argue that the specific libels against Mr. Warman are pretty clear.  He listed them.  For obvious reasons, I will not.  (In case you are not aware, it has been alleged that one of the defendants is being sued because he quoted Mr. Warman, from a deposition, where Mr. Warman complains about being called a list of names.  Apparently, repeating these – even when identified as a direct quote of Mr. Warman, could land one in a lot of hot water.)

Mr. Katz stressed that ‘context is important’ and addressed what he called the defendant’s position ‘that nobody takes bloggers seriously, so it is irrelevant if Mr. Warman is slandered in a blog…’.  (My imperfect understanding of the defendant’s position suggests that this is a re-phrasing-to-the-point-of-error of their position, but mine is not the legal mind.)  Of course people take bloggers seriously!

I think it is very nice that Mr. Katz thinks so highly of us!  I like him too!

Then he showed a legal ruling from the US that ‘it is defamatory to refer to someone as a Nazi’.

In my never humble opinion, that statement is clearly false.  Truth is always a defense.  Therefore, that statement could only hold water if it said:  ‘it is defamatory to FALSELY refer to someone as a Nazi’!

No, I am not making any inference as to Mr. Warman:  just because he had joined a number of Neo-Nazi sites does not necessarily mean he is a Nazi.

I am simply addressing the incorrectness of the statement itself:  in our country, truth still IS a defense!  In a real court, anyway…

Alas – I see the wordcount has climbed rather high… So, I will break for now and continue this tale in Part 3.

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

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.

 

Posted in freedoms, opression, politics, society, technology. Tags: , , , , , , , , , , . 9 Comments »

The ‘Wilson’ case

April 13, 2010 — xanthippa

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.

Posted in freedoms, opression, society, technology. Tags: , , , , , , , , . 1 Comment »
« Older posts
Newer posts »