Stranger than Fiction: Dr. Dawg v. FreeDominion

I've posted before about the dangers of online speech.  It is an issue with specific applications in workplace law, but it also has much more significant ramifications in other areas of law.  For instance, The Oatmeal recently explained a dispute it has been having with FunnyJunk:  Oatmeal has received a threat letter, demanding damages for defamation, because Oatmeal has publicly accused FunnyJunk of copyright infringement.

More and more defamation actions are arising from internet speech.  Many people who would be apprehensive about being broadcast publicly have no reservations at all about posting on the internet.  There's a sense of security in the anonymity of the internet.  False security, though.

Many people go online to vent about poor service they've received, or about a personal dispute they're having with somebody else.  Many people go online to debate politics.  These debates can get downright nasty, with personal insults, usually culminating in one side comparing the other to Hitler in some fashion.  (See Godwin's Law.)  Because, in general, these arguments are between people well-shielded behind anonymity, they're pretty meaningless.  But it isn't the anonymity of the poster which gives protection; rather, it's the anonymity of the receiver of the over-the-top insults.  If I post somewhere under a pseudonym, and virtually nobody knows that it's my pseudonym, then I can hardly claim that, when somebody accuses me (via the pseudonym) of some depraved conduct, it injures my reputation in the community.

The Court of Appeal recently heard a case involving such a political debate gone too far.

Yes, you read that right:  The Court of Appeal is at the point of adjudicating disputes between people having online political arguments.

On the one hand, you have "Dr. Dawg", a left-wing political blogger who, despite his pseudonym, is well-known to be John Baglow, who does contract-work for many clients including in the public sector, and who has had political opinion pieces published in mainstream media sources.

On the other hand, you have "Peter O'Donnell", which is a pseudonym used by Roger Smith, and FreeDominion, a right wing discussion site moderated by Mark and Connie Fournier.

Dr. Dawg and Peter O'Donnell carried on arguments on a number of sites, including FreeDominion.  At its essence, the debate was that Dr. Dawg argued against Canada's continued involvement in Afghanistan and supports the repatriation of Khadr on the basis that he is entitled to be regarded as a child soldier; Peter O'Donnell by contrast argues that the goals of the Afghanistan conflict (i.e. bringing down an oppressive religious fundamentalist regime) are noble, and sees the Khadr family as traitors who "should be deported".

Peter O'Donnell proceeded to call Dr. Dawg "one of the Taliban's more vocal supporters."

And that, says Dr. Dawg, went too far.  He apparently was prepared to live with being called a "traitor" and accused of "treason", but calling him a Taliban supporter went beyond the limits of what he could stand for.  (Incidentally, there may have been technical legal advantages to also pleading the 'treason' allegation...but that's neither here nor there.)  Not that the debate was clean up to that point.  Dr. Dawg used the term "yokels with pitchforks" to describe Conservative supporters, and referred to Connie Fournier as the "Free Dominatrix".

On a motion for summary judgment, Dr. Dawg's action was dismissed.  The motion judge concluded that, given the nature of internet debates (including the ability to rebut), the comment in that specific context did not carry a defamatory meaning.  The motion judge felt that Peter O'Donnell, when saying that Dr. Dawg supported the Taliban, was really implying that his opposition to the war in Afghanistan has the impact of advocating a position which would help the Taliban.

(Think of it in terms of the criminal justice system:  I might say that I favour the status quo, which requires the Crown to prove guilt beyond a reasonable doubt and gives the accused significant procedural and substantive protections, including a right against self-incrimination.  A critic might reasonably respond that a consequence of my approach is that people guilty of serious crimes might be acquitted, and therefore that my approach benefits criminals.  Saying instead that I support setting murderers loose, however...well, if understood to be a literal accusation, that would probably be defamatory.  However, if one instead takes it as a hyperbole, then it's really just a comment on the consequences of my position.)

The Court of Appeal reversed the motion judge's decision.  "The issues in this action are all important issues because they arise in the relatively novel milieu of internet defamation in the political blogosphere."  The issues did not lend themselves to a determination on a motion for summary judgment, and a trial was called for.

The motion judge was right to consider context - the meaning of the allegation has to be read in light of the circumstances in which it was made.  Nonetheless, the Court of Appeal was also right to overturn it, because the Court of Appeal wasn't satisfied that the motion judge could have achieved a sufficient appreciation of the full context in which the statements were made on a motion for summary judgment.

The Court of Appeal also hinted that the parties should be prepared to lead expert evidence at the trial on the functioning of the blogosphere and what the "right-thinking person" would take from the accusations made against Dr. Dawg.  This would provide some contextual insight for the court "whose members are perhaps not always the most up-to-date in matters involving the blogosphere".

Essentially, the Court of Appeal is clearly signalling that matters of internet defamation are going to require full trials for a time.  There are a lot of questions to be answered.  Should the blogosphere be treated differently from publications in traditional media?  What about a Facebook status or comment, or a Tweet?  Should they be treated yet differently from blogs?

It's an interesting case, and it would be interesting to see how it turns out, if the parties still have an appetite for a trial after fighting a motion for summary judgment and an appeal.  (Dr. Dawg received a total costs award of $14,000 on the motion and appeal.  Actual costs on both sides are probably substantially higher.)

Quite frankly, I would like to see the action succeed.  As a blogger and Facebook user myself, I make an effort to apply the "If you can't say anything nice, or at least provably true" axiom to my online presence.  It really isn't that difficult.  If you can't say it without casting an aspersion at someone, it probably doesn't need to be said.

But many people don't do so.  Many people are impolite and engage in name-calling, personal attacks, and other such nonsense.  There are many "trolls" on the internet.  And these detract from the quality of the discourse on the internet generally.  I have occasionally engaged in political debate online.  Real debates are great.  It is really beneficial to hear different bona fide opinions on a subject, and the reasons people hold them.  But so many people can't be bothered to debate, and arguments degenerate into petty insults.  If you go online and post anything about any politician, you can expect a half dozen people with different politics to come in and essentially say that you're stupid.  Reasonable posters are often dissuaded from participating in such online discussions, because really, who has patience for that many trolls?

That's how it is, perhaps, but not how it should be.

I don't think it's reasonable to expect that the Courts will start policing online debates, but at the same time I am uncomfortable with the notion of giving a judicial imprimatur to internet trolling.

And search engines add a whole other dimension to the issue.  Once something's on the internet, it's potentially there forever, accessible for all to see.  Even if you assume that those in the blogosphere did have a mutual understanding that such debates are No Holds Barred, there is the potential for spectators who don't fully appreciate the context.  Defamation is about saying something that reduces a person's standing in the community generally...and not just the specific community for which it was intended.  So even if the right-minded blogger might not take the allegation of Taliban support too seriously, folks from outside the blogosphere might not appreciate that.  Imagine if Mr. Baglow seeks a public sector contract which requires security clearance, and CSIS were to discover that he is alleged to be a Taliban supporter.  What do you suppose they would make of that?  Do you think they would see it as simply a rhetorical device in a debate filled with caustic and hyperbolic language?  Or do you think that they would err on the side of caution and refuse to grant clearance?

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.