Thursday, June 14, 2012

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?


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.


  1. Very fair and detailed summary of am interesting case in an evolving area.

  2. Thank you for this. But is there any way to contain the costs for the litigants? Or are they to bear the burden for society's need to explore these laws?

  3. @Jim, call me a coward, but if it were my site and someone complained and said they'd sue, and if I wasn't a mainstream outlet with a legal team to tell me whether it was likely OK or not to keep the comment up, I'd contain the risk by removing the comment. I might say I'm doing so without agreeing that it is defamatory and otherwise try to maintain my beliefs and principles, or I might make my board closed so the number of people who could see the comments was very contained. But I think this post is accurately telling those of us who blog and/or comment that there are dangers associated with online speech. Defamation law has been around for a long time but this is a new area in terms of the context of political blogging.

  4. Good comment, Marky Mark. No question that you're right - it makes sense to play it safe and take down potentially defamatory materials, if you want to avoid the prospect of significant liability and legal fees in an uncertain area of law.

    At the same time, "SLAPP". From a policy point of view, erring on the side of caution can have some negative consequences.

    Jim, that's a great question. To be completely fair, it's less about society's need for an answer and more about the fact that the Court doesn't *have* an answer to give quite yet.

    The parties are free to settle. That's often the cheapest way out on both sides. The parties can also reach agreements on whatever can be agreed upon - if both sides agree on certain facts, then you don't need to lead evidence to prove those facts.

    Indeed, many of the facts in this case are agreed upon, from the looks of it. However, the facts in dispute are primarily contextual, and the Court of Appeal is signalling that experts will be required. Not to mention that we can *already* anticipate an appeal of the eventual trial decision, and likely at least an application for leave to the Supreme Court from there...and who knows, the Supreme Court just might agree to hear it. So yes, I would anticipate the costs of this process to get pretty substantial by the end.

    And the winner may not recover a significant percentage of costs, either. In cases with novel questions of law, the Courts are reluctant to punish the losing side too severely by making them pay the other side's costs, so costs awards are often reduced or eliminated in such cases.

    1. Thanks. I'm a lawyer but don't work in this area. What do you think is the nature of the expert testimony they're looking for? Is it regarding how the comments are understood, in which case you're last paragraph still applies? Or could it be about how widespread the comment is distributed in terms of hits? Or is it about the extent of connection to the real perso instead of the handle? Or are those all things that the parties themselves could speak to? Also, much of online commentary is just insulting to people. Is any of that potentially defamtory if linked to a real person (e.g., references to someone being stupid, etcm).

      Context is all important. If someone says I'm stupid, since I'm a lawyer in theory that is damaging, but somehow it doesn't seem that it should be taken seriously.

  5. I'm sure you guys can tell me, would the court accept a veteran blogger or bloggers as the kind of experts they are looking for?

  6. That is not my gut feeling for what they're looking for but they weren't all that precise. Another blogger could perhaps speak to what is "market standard" for political blogs in Canada today.

  7. Marky, the Court appears to be suggesting experts who can explain the context in which the statement is made. The decorum of an online debate (hold all snickers to the end, please), the protocol and etiquette, the semiotics. The medium is a large part of the message, certainly, and in order to understand what is conveyed, the Court wants to better understand the medium.

    That being said, if it were me (though, to be honest, I've only dealt with defamation litigation occasionally), I'd want my expert to also be able to speak about the broader public's access to it (i.e. people other than political bloggers reading it), and about internet usage in a wider sense. Of course, in this specific case, broader public access isn't going to mean as much without broader public knowledge that Dawg = Baglow. (Apparently it's well-known among political bloggers...but my CSIS example wouldn't do much unless CSIS itself could make the connection relatively easily.)

    Jim, just having a blog wouldn't be nearly enough. Saying "I signed up on blogger and know how to rant and rave on it" isn't expertise. You don't merely want a *participant* in the community; you want somebody who can speak authoritatively about the community. Maybe someone who blogs about blogging would do. You'd need somebody who has established credentials (some sort of educational and/or professional experience, maybe internet image/marketing consultants, etc.) and an indepth understanding of the political blogging community and about other technical elements like the functioning of search engines, etc.

    Michael Geist has given expert evidence in the past on legal matters involving the internet and social media. I'm not sure this is *quite* his bailiwick, but it certainly isn't far off; his is the kind of recognized expertise I'd be looking for if I wanted to retain an expert in an action of this sort. An expert doesn't need to be so high-profile, but it doesn't hurt.

  8. Thanks very kindly for so much information. I hope I can return the favour some day.

  9. Hey there. I linked to you a post I've put up geared to letting a bunch of bloggers I know weigh in. Feel free to comment there as well if you wish.

  10. Actually, as to your experts, I would think you would want the lawyers who have actually litigated online defamation cases in Canada. There are maybe a half-dozen, and I think you would find that they would say that defamation on the Net is NOT treated any differently than anywhere else.

  11. bigcitylib, I think it's more than a distinction between online and non-online but also non-mainstream vs. mainstream, real names vs. pseudonyms and political debate vs. other contexts. The Court of Appeal said the issue deserved a trial and then added that they'd expect a trier of fact would need expert testimony to deal with this context, because a huge part of the issue is contextual. I don't think you can assume the conclusion that there is no difference in this sort of environment. But if you're right, I'd ask you if the more caustic political bloggers already are not well over the line and would be found to be responsible for defamatory material if anyone ever sued.

  12. There is no difference because the Internet is flat. I defame you on a small readership blog and anyone can find that via google as easily as they could if it appeared in the NY Times. And yes I suspect more people could get sued if they go over the line and refuse to retract when challenged. Isn't that as it should be?

  13. BCL, the law is not static. The Court of Appeal didn't have to say what they said. And the very reasons given for setting aside the summary judgment go against the bald statement you are making. Yes the net is powerful but a story on me at the New York Times discussing me using my real name isn't the same as an adversary's blog comment or tweet describing me by my handle. You seem to assume they're the same.

    Also, the elephant in the room here in terms of the politics of it is that many seem to assume that someone calling a CPC supporter a "fascist" is permissible non-actionable hyperbole whereas hyperbole going the other way is defamatory. That will not be the result.

  14. bigcitylib, it's relatively unusual for lawyers to give expert evidence of anything, because their expertise is the law, and not only is this the same expertise that judges have, but judges are able to take judicial notice of the law.

    Not that you don't see it occasionally - for instance, in the "right to strike" case moving forward in Saskatchewan, Michael Lynk - a prominent law professor at UWO - swore an affidavit setting out the history and status of labour rights under international legal conventions to which Canada is a signatory. Unique, and one could probably argue that it's still improper expert evidence, especially since parts of it are certainly more in the nature of legal argument, but it was probably useful to the Court, because we're talking about a thorough treatment of complex and relatively obscure non-domestic legal principles.

    (I think it's essential that that case deals with non-domestic law. What Canadian Courts do is a matter of legal argument, not expert evidence.)

    In particular, the question the Court of Appeal says the Court below has to answer is how the defamatory statement will be understood. I think you're right that the *law* itself won't be approached differently, but this is an underlying factual question which may (or may not) have different considerations in Web 2.0 as compared to the New York Times.

    A discerning reader, reading a small-readership blog in which Marky Mark is defamed, will recognize the unreliability of Web 2.0; when an essentially anonymous blogger says something negative about Marky Mark (not to pick on you, Mark, but just operating in the terms of the example), readers ought not to give it much weight. But whether or not they "ought" to is, perhaps, beside the point. Not everyone is so discerning.

    In particular, if Marky Mark's handle can be easily co-identified with his real identity, such that a prospective client of his would be able to figure it out through internet searches, then one could *easily* imagine a scenario where an anonymous comment maligning his competence or values would result in him losing business. Even somebody who is appropriately sceptical of such a defamatory comment might ask "Why take the chance"?

    By comparison, think about bad employment references. It is very well known in the HR community that many employment relationships break down as a result of poor chemistry, and that this is not necessarily a reflection on the employee. (In other words, the fact that an employee parted with a previous employer on bad terms is a very poor predictor of whether or not the employee will be a positive addition to your workplace.)

    However, if a recruiter has a half dozen candidates on a short list, and knows or infers that one of them had their last employment relationship end badly...well, all other things being equal, that will really hurt that employee's candidacy, regardless of the reasons. You know he didn't fit into his last workplace, which may or may not reflect a problem with the employee, so why take the chance?