Friday, January 31, 2014

Human Rights, Defamation on the Internet, and Free Speech

The hosts of have been successfully sued for defamation.

This isn't the Baglow action I posted about a year and a half ago, but a different one entirely involving a very different controversial character, crossing a different controversy I discussed in this October 2011 entry in terms of the human rights regime.

You may have heard the name "Richard Warman" before.  He is an Ottawa lawyer who has been very active in the Human Rights arena, including working for the Canadian Human Rights Commission for a time, and bringing a number of complaints under the now-defunct s.13(1) of the Canadian Human Rights Act - known as the 'hate speech' provision.  As I expressed in the October 2011 entry linked above, I was somewhat ambivalent about the hate speech provisions:  I understand the underlying policy rationale, but - as much as I disagree with most of what Ezra Levant has to say about human rights - Levant's opposition to s.13(1) made a certain amount of sense.

Richard Warman became a central figure for s.13(1), and many commenters - such as Levant - took to criticizing him when they criticized the law.  His conduct represented the human rights activism that Levant et al. so despise, and much of the rhetoric out there about Warman is conservatively described as 'inflammatory'.  (I don't need to replicate what's still being said about him.  You can find your own way to Google.)  He has been subject to many public criticisms and accusations (some of them quite serious), and has apparently even received death threats, and had an American neo-Nazi group call for his death.

Warman took the view that some of what was being said about him crossed the line into defamation (perhaps putting it mildly), and he has commenced a number of defamation actions, including against the National Post, the Canadian Association for Free Expression, Ezra Levant, and - the hosts of the conservative forum freedominion - Connie and Mark Fournier.

Some have settled, some are ongoing, some have been successful, and the action against the Fourniers has recently been decided.

The Trial

The Fournier action was tried before a jury, the result being that there will not be conventional 'reasons for decisions' published.  So I have to infer a little bit from the other documents that are published, but my sense of the facts is as follows:  The Fourniers have long operated the conservative website 'freedominion', which included a forum for public comments.  A number of individuals (apparently including the Fourniers themselves) made comments disparaging Warman.

It appears that Warman's allegations of defamatory statements included the following (among others):
  1. A statement in reference to him that "that a****** is so obnoxious that even his fellow fanatics at the "Human "Right" Commission couldn't stand him" [sanitation added];
  2. An allegation that he threatens "anyone who tried to publicly expose [his] activities"; and
  3. Allegations that he was involved in and responsible for various activities of an 'urban terrorist group'....
(These were drawn from a longer list of of particulars in the Notice which Warman provided under the Libel and Slander Act; I don't have a listing of the 41 postings the jury ultimately found were tortious, however, so I cannot assert that any particular libellous statement was actually made.  Moreover, I have listed these as allegedly libellous statements, and should absolutely not be taken as suggesting that any of these statements about Mr. Warman are true.)

The defendants, until the end of trial, maintained the defence of 'justification' - i.e. that the defamatory remarks were true.  (From the wording in the costs endorsement, I infer that they abandoned the justification argument at the end of trial.  I invite clarification from any of those involved.)  The defendants also relied upon the defence of 'fair comment'.  However, 'fair comment' only protects good faith comments, and the jury found that the defendants' actions were motivated by malice.

The jury awarded a total of $42,000 against the various defendants, including $9,000 in aggravated damages and $18,000 in punitive damages.


In this very recent decision by Justice Smith, Mr. Warman was awarded costs, as well as injunctive relief preventing them from publishing further defamatory statements about Mr. Warman.

The costs decision is relatively unusual - on a claim which resulted in $42,000 in damages, the plaintiff obtained a costs award of $85,000.  Ordinarily, that result is undesirable for reasons of proportionality.  However, these were unique circumstances.

Firstly, Mr. Warman offered to accept an offer of $5000 plus costs, and the defendants turned it down.  They consistently failed to acknowledge any wrongdoing, did not take down the offensive postings until 9 months after receiving the aforementioned Notice, and maintained the defence of justification until the end of trial.  The only offer the defence ever made was, prior to trial, an offer to settle on the basis of payment by Warman of $55,000 in legal fees.

Secondly, there's an expectation and recognition that there is more at stake for a plaintiff in a defamation action than the damages themselves - he's seeking vindication, a clearing of his reputation.

Thirdly, the litigation was lengthy and highly contentious, and the defence requested a jury trial which added to the cost and complexity of proceedings.  (Indeed, it's very strange to have a jury trial in a matter of this value.)

The bottom line is that, in light of the very acrimonious nature of the proceedings, the importance of the issues to the parties, and the fact that the defence fought tooth and nail without ever canvassing reasonable settlement options, a relatively high costs award is to be expected.

The defendants made a strange argument, that because the plaintiff's offer to settle was within the jurisdiction of the Small Claims Court, the action should have been brought in Small Claims Court, and therefore only nominal costs should be awarded.

It's strange for a few reasons:  The argument would seem referential to Rule 57.05, which says that where a plaintiff obtains judgment for an amount within the jurisdiction of the Small Claims Court, the court has discretion to refuse to award costs to the plaintiff.  But the judgment here was not within the Small Claims Court jurisdiction, the offer to settle doesn't trigger that rule, and there is no reason to think that it should.

As well, the defence chose a trial by jury, which is not available in Small Claims Court, and the plaintiff sought (and obtained) an injunction, which is also not available at Small Claims Court.  The implication that it was unreasonable to bring this action in the Superior Court...just doesn't make sense, and is suggestive of the 'kitchen sink' approach to litigation which the costs award otherwise implies was taken by the defence.


The injunction is also interesting.  It's pretty straightforward, ultimately:  The jury found that the defendants had maliciously and persistently defamed Warman, and the evidence and conduct of the trial showed that they were pretty unrepentant about it, suggesting that it could well happen again.  Accordingly, the judge made a permanent injunction restraining the defendants from continuing to publish the defamatory statements.

What's more interesting is freedominion's reaction to it.  As of January 23, 2014, they have converted the forum to a "Members Only" forum, which can only be viewed by members.  If you try to go to their site at this moment, you'll see a large graphic:  "Censored!  Closed to the public", with an explanation that they were ordered not to publish, or allow to be published, anything negative about Richard Warman.  They go on to explain the following, in support of a pitch for donations to fund their appeal:
This means we are barred for life from ever operating a public forum or a blog (even about cookie recipes) where the public can comment. If we do so, any one of Warman’s handful of supporters could, and probably would, use a common proxy server to avoid being traced, plant a negative comment about Warman on our site, and we would both be charged with contempt of court. If that happened --unlike in the Ottawa courtroom where we were blocked at every turn from presenting a defense-- we actually would have no defense. We would both go to jail.
Simply put, this is untrue.  There's a mens rea component to contempt - you cannot accidentally or inadvertently commit a contempt of court.  If they took reasonable precautions against the publication of prohibited defamatory statements about Warman (setting clear rules about defamatory speech, moderating the forum responsibly, and deleting any such defamatory statements as soon as they become aware of them...i.e. do the things that would have prevented them from getting sued in the first place), then I simply don't see how the test for contempt could be met.  Though, of course, it likewise strikes me that the finding of 'malice', combined with the approach to the litigation described by Justice Smith, suggests that these particular defendants may not be particularly enthused about the notion of policing against comments that defame people they don't like.

Further, the assertion that they would both go to jail ignores the range of penalties available for contempt.  Where contempt has been 'purged' - i.e. where you have taken the necessary steps to bring yourself back into compliance with the order (namely, delete the offensive comment) - that's a mitigating factor.

I might almost think that their lawyer may have told them, "In an abundance of caution, just take down the forum."  But 'abundance of caution' advice in the defamation context typically sounds like "If you can't say anything nice..." - suggesting that Warmanites are going to entrap them and send them to jail may well be toeing the line a bit.  (Not to mention seeming really disingenuous.  In light of the jury's conclusions, and Justice Smith's commentary on the point, it seems a stretch to suppose that somebody who posts something negative about Warman on their forum must be planted by Warman.)

The Appeal

It appears that the Fourniers will appeal.  They've commenced an Indiegogo fundraising campaign entitled "Anonymous Troll Could Send Us To Jail!" to help finance the appeal - as of the time of posting, they've raised over $4000.

I haven't seen the specific grounds of appeal alleged, but what I can say is that appealing a jury award is challenging.  A jury's findings of fact are almost bulletproof, unless there's no basis in the evidence at all for them.  In general, you need to find a problem with the procedure of the trial - i.e. a judge's ruling on the admissibility of evidence, or something of that ilk - or with the judge's instructions to the jury.

So unless there are relevant evidentiary issues in play, the jury's finding of malice is unlikely to be successfully appealed.  And that's a pretty core aspect of the litigation.

I've also seen comments from the Fourniers' suggesting that defamation law as it stands is 'unconstitutional', because of "presumed guilt, malice, and damages".  Not sure if that factors into the appeal, but it's a deep misapprehension of the law.  If I bring a defamation action, I need to prove that you said something defamatory about me.  The onus is upon me.  Some of the defences have a reverse-onus, but that's not unusual, and you only have that onus once I've satisfied my onus.  So to say that there's "presumed guilt" is incorrect.  If you can establish a defence such as 'fair comment', on a balance of probabilities, then the onus shifts back to me to prove malice.  In other words, there's no presumption of malice.  As for presumed damages...that's actually completely normal.  "General damages" are damages presumed by law, and they're really common throughout tort law.

As well, it'd be really challenging to argue that a constitutional threshold is triggered by defamation law.

[Update, February 25, 2014:  I've now received a copy of the Notice of Appeal, with the grounds of appeal being alleged.  I've prepared a detailed commentary on that subject, found here.]

The Underlying Issue:  Defamation on the Internet

Reading some of the commentary supporting freedominion on the point, the running theme is 'freedom of speech', the notion being that the internet provides a revolutionary new opportunity for people to make themselves heard, and that defamation law should not stand in the way of this freedom.

With that in mind, I suppose we stand at a crossroads:  We can see the internet as a lawless land where anything goes, where you can speak your mind with impunity regardless of the impact.

Or we can treat the internet the way we treat other modes of communication, and hold people responsible for the consequences of what they say.  Freedom of speech is still protected, but within reasonable limits, and on the understanding that people may face consequences for their speech.

If we were to opt for the former, the result would be that the internet's power to misinform would become vastly greater, to the point that its ability to inform - its value as a source of information - would be enormously compromised.

If I were to say that Premier John Doe of Erewhon were a convicted child molester, some readers would believe it.  And why not?  Even for those who know to take things with a grain of salt, I'm here using my real name, and am verifiably a member of a respected profession, with access to legal databases...and most importantly, if I were saying it without it being true, I'd be running a serious risk of getting sued.  That risk holds me to a certain degree of reliability.  Otherwise, it would be perfectly fine for me to drive up readership by writing the occasional post casting defamatory aspersions at public figures.  I can guarantee you my readership would grow more quickly than the public realization that I'm fibbing about such things.

The removal of a remedy from the victims of my disparaging remarks would be awful from a public policy perspective, and would only be abated if and when people came to realize that, in fact, nothing on the internet has any reliability whatsoever.  Which would make the internet pretty pointless.

The internet is a medium for information.  It has its reliable sources and its unreliable sources, and as such is no different from other media (think: magazines), except that it's easier to add to and more convenient to access.  By giving users of the medium carte blanche to make unsubstantiated and harmful allegations against others, we would be seriously harming the integrity of the entire medium.  Sure, it would be accessible, but who cares about accessibility to the medium that isn't worth paying attention to?

This is why I support treating the internet the same as any other means of communication.  It's a powerful tool, accessible to everyone, and we make it better by holding its users to the same standards that would apply elsewhere.


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.

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