Friday, 15 June 2012

User Pay



Couple of things up front: I am not a lawyer. And I have not polled other DJ!ers on this. I'm speaking solely for myself.

I have no dog (so to speak) in this fight beyond my status as Internet user: blogger, Tweeter, and blog commenter.

So this happened.
Dr. Dawg will have his day in court, a panel of judges has ruled.

In a decision released Thursday, the Court of Appeal for Ontario reinstated the defamation suit of John Baglow, a.k.a. Dr. Dawg, an Ottawa blogger who said his reputation had been soiled in an online conservative chat room.

That allegation will now be the subject of a trial that could establish new rules for discourse in the Internet’s bruising marketplace of ideas.

“The issues raised in this action are all important because they arise in the relatively novel milieu of Internet defamation in the political blogosphere,” Justice Robert Blair said, writing for the three-member appeal panel.

Questions about what constitutes defamation in the caustic world of blogging have not been addressed by Canadian courts “in any significant way,” Blair noted. It means, he said, that a full-blown trial is needed to explore key questions, such as:

• Should the law accept that “anything goes” in the blogosphere?

• Are defamation standards on the Internet the same as those now applied to newspapers and TV?

• Should posts on a political blog be considered the same as ones on Facebook or Twitter?

A trial, Blair said, will allow the court — “whose members are perhaps not always the most up-to-date in matters involving the blogosphere” — to answer those questions with the benefit of cross-examination and expert evidence.

The appeal ruling overturns a lower court decision to throw out Baglow’s lawsuit before it could proceed to trial.
Relevant sections of the ruling at Morton's Musings.

So. There's going to be a trial. With facts and arguments and expert testimony and cross-examination.

You know, the stuff that helps inform the law in a fast-changing world.

And, presumably, at the end of the day, interested parties will have a better idea of what can and can't be said on the Innertoobz. And who is and is not responsible for content on a blog or discussion board.

How is this a bad thing?

Well, the bad part is that the individuals involved have to pay for it. And the costs could be substantial.

I'm no organizer but if someone would like to set up a way to fund BOTH sides of this case, I'd chip in.

Failing that, if/when Free Dominion and Dr Dawg get their own funding mechanisms in place, I'd chip in to BOTH of those.

It is not a matter of taking sides. It is a matter of setting some guidelines for current users of the Net and for future cases of outrage and umbrage.

Somebody's gotta pay for it. Why not the greater Canadian Internet community?

Image source.

MORE: With comments from a defamation lawyer.

UPDATE on Saturday, June 16/12: My response to Namó Mandos's post.


ADDED by fh on June 19/12: Isn't this an interesting development? I wonder who will debate.

69 comments:

Balbulican said...

I have a feeling I'm missing a critical piece of blog history or a political subtlety here.

I too think it's going to be an interesting and important legal action.

I comment and occasionally post at Dr. Dawg's, so I guess you can infer a certain bias. But it seems to me that a contribution to both sides suggests there is nothing more to this argument than an interesting point of law to be debated and clarified. That's not the case. Dawg was accused of treason. That was a slanderous lie, and it exemplified that kind of horrible, distorted "thinking" that underlies the haters' sites.

By contributing to Dawg's legal costs, I support the principle I think you and I agree on (shining a little light on the law as it impacts on political bloggers); and do so without making common cause with the Arnie Lemaires and Kate MacMillans.

So I don't get the logic of your position.

Marky Mark said...

I agree with you. I put my two cents worth in on another post at James Morton's blog:

http://jmortonmusings.blogspot.ca/2012/06/musings-on-dr-dawg-case.html

If there is to be a landmark case, that is a good thing and it does benefit everyone who participates--but I would have to think it is a catastrophic hardship to the individuals involved. That being the case, while one possibility is what you suggested, the other would be some sort of a private arbitration with the panel including bloggers who understand this stuff. Lots of commercial disputes are settled in such a manner. i don't see it happening, but I'm not sure why it wouldn't be the best way out. (Mind you, if I were the defendants I would find a principled way to delete the comment(s) that led to the suit and I were DD I probably would declare victory and leave it at that. Clearly those who are far more committed political types than I am are not going to go that way, and I respect that, but I would observe that from a dispute resolution perspective guided by practical, personal and financial factors, that is how the vast majority of litigants and their lawyers would view it.)

fern hill said...

I've recently been involved in some legal shit and it's very expensive. My side ran out of money, so the other guy won.

I don't think the Deep Pockets should set the rules.

Kinda like the arguments in favour of HRCs or Court Challenges funding: There should be a cheap(er) way for people to get their cases heard.

fern hill said...

A private settlement wouldn't set precedent though, would it? (IANAL.)

Marky Mark said...

Balb,

If I understand the decision correctly the court assumed that Dr. Dawg was in fact prepared to live with the "treason" and "traitor" labels (see numbered paragraph 12) and that the suit was about the "Taliban" reference.

I don't want to be taking a position on the merits of a case in litigation and still before the courts. Dawg has won his day in court and I think that was the right decision. I also read the decision as the court saying that if this case in in fact does come back to court it will of course be about the merits of this specific case but that the parties must be well armed with everything that they think must be explored for such a landmark casr to be litigated. That seems to me in turn to require the players in volved to think long and hard about what they want to throw at it from a personal, psychological, health related and financial perspective. It will be life dominating.

Would you do it?

Fern,

Yes, you're correct that a private settlement wouldn't set precedent.

I take your point about which case should be the landmark case and what it should be about, but I think the extent of the costs associated with such a landmark case are going to be far more than people may realize.

Balbulican said...

Well, in the real world, a handful of lefty bloggers will rally around and try to find funding for Dr. Dawg, and the rather more well organized cadre of hate bloggers will do the same for the Fourniers.

I've been accused of felony by one conservative blogger, and my staff were terrorized by another. I acknowledge your commitment to abstract principle. Unfortunately, the real world is where this is going to play out.

Marky Mark said...

I admire political passion and commitment to principle but, in response, I think what I'm suggesting comes from a practical (and not an abstract) perspective. What the court is saying to you is that if people want them to settle things of this nature and as a landmark case, they'd better be very well prepared. I don't know how much money can be raised on both sides just by bloggers as opposed to with the help of more well funded political organizations, but I doubt it will be anywhere near enough.

Balbulican said...

"Would you do it?"

At this point in my life, no: I don't have the time, and I don't share Dawg's passion for politics. I'm just a grump.

Buckets said...

Contributing to both sides is a generous idea. I see two issues here.

First, as far as I know, Dawg has so far not had any (or much) financial help, whereas FD have been fundraising quite regularly. So if a pot develops, the first few thousand (at least) should go to Dawg.

Second, I'm not sure how much the court should be settling this. The problem is with Canadian defamation law generally. These should be fixed through legislation.

Tweeting Ninja said...

Sorry, I cannot abide this foolishness. The broader issue is that the right (or Harperight, if you will) have taken to teh interwebz en masse to defame, in the foulest and most absolute terms, anyone who dares speak against the corporatist/Zioneocon agenda.

Further, as Fern Hill said herself, "I've recently been involved in some legal shit and it's very expensive. My side ran out of money, so the other guy won."

Well riddle me this: Which side ALWAYS has more money??? The side defending the least among us, and often composed thereof? FUCK NO.

There's no question that the right is better organized, but the bottom line is...well, the bottom line! They have the money, so they always win in court. Now, you want us to give them money to defend the indefensible? Am I reading this right???

CONjobs are masters of drumming up cash for their pet projects, like this one. Will they do it in order to flesh out issues of free speech for the common good, as Fern seems to posit? FUCK NO.

They buy the precedent, so they can do it again next time for free. The cost will be amortized over tens of thousands of slurs, in furtherance of the political agenda that gives them the most money. Duh.

When the upper crust see 'equality', they understand 'less for me!' This means they'll spend like mad, pricing progressives out of the so-called justice system well into the foreseeable future.

I will surely continue to agree with Fern on 99.999% of things well into the future, but on this one, I can only shake my head and wonder if she's recovering from a massive head trauma. Get well soon, Fern!

Jim Dandy said...

Sounds to me like I as a member of FD am being called a hater over and over here like a verbal tick, and that's just as bad as calling someone a traitor and I'm sick of it. It shows a lot of hate.

Marky Mark said...

Interesting comment-re: the second point, yes, legislation could clear a lot of this up instead of asking the courts to apply the common law to new media and asking policial activists to fund such an expensive landmark case.

fern hill said...

Um, TN. Dawg won this round.

fern hill said...

Pot. Kettle.

Jim Dandy said...

As well as funding regularly Connie and Mark have been sued multiple times already by individuals on the left who would like to see conservative voices removed from the internet. What they have collected is just a small part of their costs already.

fern hill said...

Jim Dandy: This is not the place to defend FD or slam people on the left.

Speak to the issue or your comments will not appear.

Tweeting Ninja said...

Getting your day in court is NOT the same thing as winning. This is akin to paying the cover charge; still doesn't get you a lap dance.

Balbulican said...

"Sounds to me like I as a member of FD am being called a hater over and over here."

I have no idea whether or not you advocate or express hatred or not.

"...like a verbal tick."

You mean "tic"?

"That's just as bad as calling someone a traitor."

Well, no, actually, it's not. Calling someone a "traitor" is accusing them of a felony which, until recently, was a crime punishable by hanging. And as I noted, I have no idea whether you personally promote hate or not.

"I'm sick of it. It shows a lot of hate."

Nah. It show disapproval.

Jim Dandy said...

True. Just so long as none of us go away feeling righteous.

I just popped in to say how admirable fern hill is regarding fair play and open dialogue. She wants a fair fight, open dialogue. You don't see that very often.   Most people don't want a fair fight. They want their opponents to not be allowed to speak. UWhen that day comes they will be very happy in their echo chamber.

Marky Mark said...

Just one final thought here, since it seems there's nothing stopping the train wreck of personal ruin that is going full steam ahead. The court is going to want expert testimony. There may be some political bloggers out there who have a view as to what crosses the line into defamation in these discussions. It would be a contribution to the process to have something of that nature posted and commented on (although I wouldn't in doing it refer to any case that is outstanding).

People also should understand that posts of this nature and some of the comments will be considered by capable and creative counsel on both sides of this dispute, as I think the court will be very interested in what the political blogging community makes of this case.

fern hill said...

Nice analogy.

But Dawg did win. He appealed and won. The FDers were certainly treating it as a win for him. He got costs awarded.

Jim Dandy said...

That's the best idea I've heard in ages.

Tweeting Ninja said...

I'm going by your excerpt excerpt above. Dawg's suit was reinstated. In other words, FD 'won' in having the suit dismissed in the first place. If Dawg hadn't had the cash to fight on, it would have been FD 1, Dawg 0. In which case, there would still be no precedent.

So if you insist on keeping score in the absence of a *decision*, call it a tie. Otherwise, the only way this shit gets settled is if Dawg has the cash to fight on. I doubt FD will ever have to worry about fundraising.

fern hill said...

Jim Dandy: I did not approve your 2nd comment just now. Keep the left-right whining out of this.

fern hill said...

That's what I said. FD won first round, Dawg won second. Tie.

Now the contest is: Who has deeper pockets?

Maybe FD does. Maybe Dawg does.

In any event, it's a lousy way to settle issues that have far-reaching consequences.

Balbulican said...

Jim, don't get me wrong. I want my opponents to be allowed to speak, and I don't the Fourniers shut down. Their views, and the style of discussion on their site, is not to my taste; but I want to live in a country where they can express those views.

At the same time, individuals need protection against defamation. You don't get to call me a pedophile, a traitor or a terrorist because I disagree with you.

Fern's is a very principled stance. I am suggesting that in supporting one or another of the disputants, one can still serve the same ends.

Jim Dandy said...

You are absolutely right. How could I start into that trash talk when you are the one offering to work together. Many apologies. No more left-right trash talk from me.

Marky Mark said...

Interesting take on it from another lawyer:

http://lawyerbuchanan.blogspot.ca/2012/06/stranger-than-fiction-dr-dawg-v.html

fern hill said...

Marky Mark's link.

Purple library guy said...

I would suggest that there's a bit of a distinction to be made there. Well, two of them--first is accuracy. Research consistently suggests right wingers really are haters. Talk of lefties as traitors, Taliban/terrorism supporters etc. is just common-or-garden-variety lying.

Second is, calling someone a hater, or for that matter a fathead, jerk, or various more profane epithets, really doesn't have much factual component and certainly doesn't constitute an accusation of crime. "Hater" makes some inferences about someone's internal emotional state, but I think everyone including judges would not expect audiences to be thinking "Whoa, that commenter did a functional MRI on the other guy and after running it through some fancy software concluded he's a hater".

On the other hand, "traitor" and "terrorist supporter" are factual claims about serious crimes. It isn't mere invective, objectively it is a claim that the target should be in jail (or, given right wing attitudes about punishment, perhaps dead).

(Ironically, this is generally because of things the target has said, which would suggest that "They want their opponents to not be allowed to speak")

So no, this equivalency crap is just that.

Jim Dandy said...

You seem to think that FD is a well oiled political machine, but I can tell you it's not. It's just a handful of people who have been chipping in for a long time because Connie and Mark have been being sued for a long time. We are putting up nickles and dimes in light of what all this is costing.

Skippy Stalin said...

Not for nothing, but there are no felonies in Canada. Indictable offences, yes. Felonies, no.

JJ said...

Can't say I disagree. (Having said that, prepare to be attacked. When I defended FD on the basis of free speech during one of their first legal battles the response was *unpleasant* to say the least.)

I can't tell you how much I despise the litigious turn the internets have taken lately... sometimes with good reason, I guess, but in the long run I don't see it as a trend that can end well.

harebell said...

If you are going to call someone something then you should be able to back it up.
FD and the poster couldn't do that and also refused to remove the assertions when asked.

It wasn't a case of trying to shut someone up, it was a case of correcting the record.

I really don't see what is hard about this. Don't make stuff up and lie and you'll be fine, if you do overstate your case and are asked to remove the post do so.
If you don't accept the consequences of your action accept the repercussions like a grown up.
Dawg did nothing wrong, FD did. So any monies in support should go to Dawg.

fern hill said...

Well, except for the head injury crack here, it hasn't been too bad, though I gather Dr Dawg has been tweeting some waspish stuff with a link to this post.

I guess I'm beneath Kinsella's august notice these days.

Antonia Z said...

I don't care what the principle is here. I could never imagine myself contributing to defend a website that allows such stupidity to stand. It's called moderation. Hello?

No amount of support for free speech should put a website or publication in legal and financial jeopardy because of some third party, especially one positing under a pseudonym. If the third party has something to say, then let him say it on his own blog or standing on a soap box at the Eaton centre.

That said, I believe in free speech and, as a working journalist subject to Canada's uneven libel laws (the richest win), I would prefer we had much looser standards for what what can say about people. (Short of hate and incitement, of course.)

As to the merits of this particular case ...

Being called a supporter of the Taliban is not as bad as, say, being called anti-Semitic. The former is patently absurd, i.e. not damaging IMO, while the latter is conceivably plausible and potentially far more harmful to one's reputation and community standing.

That's why I think this is not a case worth fighting. FD should remove the comments, moderate more closely and apologize publicly and prominently.

Marky Mark is probably correct. There's nothing to be won here and far too much to be lost.

Let the big boys with the libel insurance (e.g. The Star) set the precedents in landmark cases. Eventually they will have to.

fern hill said...

Good points, Antonia. But the principals seem pig-headed enough to carry on regardless of the merits of the case.

So, who's gonna sue the Star? ;-)

Tweeting Ninja said...

Maybe not well-oiled, but well-financed to be sure. It's like I said, left-wing causes are always more poorly-funded, because anything that people with money perceive as an attack on their money will be fought on a no-expenses-spared basis.

This sets up the left-right dichotomy that cunts like Pierre-Karl Péladeau rely on to change laws that don't benefit the super-rich, all the while claiming those same laws hurt the middle-class who prop up The Harper Gang. Well that, and likening opponents to Taliban and traitors. Sound familiar???

Tweeting Ninja said...

Bottom line: None of these neocunts would ever *consider* donating to Dawg's legal defence. To implore lefties to prop up RWNJ efforts financially while they undermine ours at every turn only serves to drain the pool of resources available to defend progressives from Tory defamation.

Or more succinctly, rubbish.

fern hill said...

You're probably right, TN, they wouldn't actually donate to Dawg.

But maybe to a war-chest for Canadian Civil Liberties to act as intervenor or somesuch.

And, um, I'm not imploring anyone to do anything.

Connie's main point is still valid for all bloggers -- are we to be held accountable for all comments on our blogs? Even idiotic slanging contests between pseudonymous posters?

I'd like that bit cleared up, one way or another.

Balbulican said...

@Skippy: thanks for the clarification. But my point stands.

As for my use of the term "hater" - well, it's a term that some of whom I speak actually embrace and brag about.

JJ said...

"Well, except for the head injury crack here, it hasn't been too bad"

So much for that, eh?

Funny -- Dawg is opposed to the long gun registry, a position many consider profoundly fauxgressive at best, full of wingnutty goodness at worst. (Been there, been on the receiving end of that.) It's OK for him to break with the herd & think for himself on that issue, but it wasn't okay for me. And now it's not okay for you to think for yourself on another issue.

The message I get from these unrelated-but-somehow-similar situations is, if you're a female, don't deviate from the "progressive" hivemind.

/puke

fern hill said...

One of those 'conjugate the adjective' deals?

He's an independent thinker.

Whereas,

She's an inconsistent fool.

Like that?

Antonia Z said...

"Connie's main point is still valid for all bloggers -- are we to be held accountable for all comments on our blogs? Even idiotic slanging contests between pseudonymous posters?"

At the risk of repeating myself, YES.

What makes bloggers so freaking special? That they're "little guys" compared to big corporate media?

Sorry. I don't buy it.

Corporate media have comment moderators. And we don't publish any old letter that comes to the letters page.

I am even careful with what gets posted on my Facebook wall. If somebody posts something that, in my experience, could be defamatory, I hit delete.

I am the publisher of my Facebook profile. Bloggers are the publishers of their blogs. People who run forums are the publishers of their forums.

There is no blog in Canada so big and so popular that comments can't be moderated.

fern hill said...

We do moderate here, Antonia, as you know.

But sometimes there are old animosities between people and something really innocuous looking (to me, at least) gets up somebody's nose and as my old mum would say: Shit in your hat and the fight's on.

Maybe, as a reporter, you have a finer sense of what is and is not defamation. I'd like some guidance.

And does it really matter if people are using pseudonyms? I don't give a crap when Warren Kinsella calls fern hill an idiot. It's surprising, but who cares?

MyPetGloat said...

It is absurd to accuse Dawg of sexism in this argument. "head injured" has no gender basis or bias.

fern hill said...

Might want to brush up on those reading skills there, MPG. Neither JJ nor I accused Dawg of any such thing.

And now, since you've revealed yourself to be a flying monkey here to cause trouble and report back, kindly go away.

kootcoot said...

"You're probably right, TN, they wouldn't actually donate to Dawg.

But maybe to a war-chest for Canadian Civil Liberties to act as intervenor or somesuch."


Any righty worth his blue tank top or his I HEART Harper button, considers the Civil Liberties groups lefty-commie poverty pimps promoting the relativistic secular decay of everything "real" white (and token proxies, like Zimmerman or Harold Ford) people stand for.

fern hill said...

I dunno, kootcoot. I can envision some kind of Internet Defense Fund. If these online spying initiatives go through, we'll certainly need such a thing.

JJ said...

"It is absurd to accuse Dawg of sexism in this argument."

Oh sweet jebus on a stroked-out harley...

WHERE did anyone accuse Dawg of sexism?

What do you do, read 2 words per sentence then proceed to the next one?

deBeauxOs said...

Good grief.

MyPetGloat is gleefully living up to her name and bragging that she has been *banned* from DJ! but sadly, she is wrong.

It was simply a request for the flying monkey - based upon the behaviour you exhibited here - to "kindly go away".

But do keep distorting other people's words and throwing oil on the fire.

You've found your lowest common denominator and comrade for that kind of conflagration, I note.

Antonia Z said...

Libel is libel even if it's under a fake name or by an anonymous source.

Until Canada's libel laws are changed away from the British model and closer to the US model, we all have to take very great care with what we allow to appear under our names as de facto or virtual publishers.

MyPetGloat said...

I was advised I had been banned and responded with one ROFLMAO, which is a far cry from bragging. I didn't even see you telling me to "go away" until Dawg blogged about this. I'm not as interested in this blog or the drama as you seem to think. I asked one reasonable question. I wasn't interrogating or being a troll. I asked one simple question. And you call me a flying monkey who distorts other people's words. It seems to me you are doing that. Cross posting at Dawg's since you moderate comments here.

JJ said...

Wow.

I'm amazed at how far this has spun out and how much misrepresentation and distortion is going on.

I'm sorry I ever said a goddamn thing about any of it.

JJ said...

"I'm not as interested in this blog or the drama as you seem to think"

And yet... here you are.

Cross-posting, no less. Clearly the response of someone who's "not interested" ;)

Dr.Dawg said...
This comment has been removed by the author.
Anonymous said...

You mean if Dorothy calls the Wizard a very bad man, Frank Morgan can sue Judy Garland for libel because he's really a very good man (just a very bad wizard)?

Marky Mark said...

Antonia, does it matter if the person who is the target of the negative comment really is pseudonymous? Mind you, the publisher never really knows who if there are people out there who have that knowledge.

This seems to have gone too far. I can't remember quite how this started, but I made a suggestion to the free dominion Twitter name to just delete the comment and explore whether that would end things. The answer seemed to be no. I then said that in light of what the court actually said-and if people haven't read the decision they should-maybe the litigants instead should let a panel of bloggers decide it. I asked FH who said no. But I think that got her thinking about HOW issues of this nature can be clarified for the benefit of all who blog and comment without a soul destroying financially crippling court case.

One way to look at this is that it is a court case between a plaintiff and two defendants. The other is that the court has said it will be a landmark case which will clarify the law and they want experts to take them through it. If one looks at it the second way, it is easy to see not just why there is so much interest but why others care that the result is a good one beyond just which party wins.

fern hill said...

MM: You're right. It was your invitation that got me thinking about it.

Are amici curiae/intervenors allowed in this sort of case? Who would do it?

If online spying bills are passed, I can see lots of actions by the State against an individual or group. Then, a non-partisan Internet Defense Fund would be a grand thing.

Steve C. said...

The remark in question only seems absurd because its inaccuracy is obvious to those familiar with Dr. Dawg. There is no evidence that it was written in jest or as a form of hyperbole.

I would agree that it is less likely to be harmful than an accusation of Antisemitism, but I don't believe he is asking for a large financial award. Let's not make too light of the charge either, since it is the sort of thing that can get you on 'no-fly' lists and other special attention.

I think there is a valuable precedent to be set for the little guys. Leaving things to the large entities further enables the system to favour the wealthy, and leaves the impression that slandering those without insurance is consequence free.

Marky Mark said...

Steve C,

So let's say you and I are discussing the Trayvon Martin killing and I take the position that the prosecution proceeded due to political pressure and not because they think they can gain a conviction. Let's say you then say my position is racist. And then let's say you add out of hyperbole or jest that my position is the same as the KKK's even though you don't believe I'm a supporter of the KKK. Let's assume my pseudonym is such that there are those who know who I am.

What's your position on that one and does it turn on your intent (hyperbole or in jest) or its effect on me? Does it matter if people doing a search on my real name see references to me and the KKK? Or does it turn on the context such that it isn't reasonable for those following the back and forth to think I'm really a KKK supporter?

And by participating in such a debate, to the extent that the particular blog has lots of exchanges of that nature, have I consented to being on the receiving end of comments of that nature?

These are among the questions that a court trying a political Internet defamation case will be interested in exploring, aided by expert testimony.

Steve C. said...

For your hypothetical situation, I would not see the relevance of hyperbole or jest, since suggesting that a position on a topic is the same as that of the KKK is not a suggestion of membership or of any support at all. It's a truthful (although entirely irrelevant) point to make. The accusation that your position is racist has potential sting, and is unsupportable based on your synopsis of the situation.
As for your other question, context is important. The full back-and-forth is not required; just enough to understand the plain intent of the claim.
The prevalence of heated exchanges does not excuse libel.

Marky Mark said...

I don't know if you've had a chance to fully read through the decision but if you haven't you probably should. The court decided this wasn't a case for a summary judgment. It didn't tip its hand as to whether it thought the statement in question met the test or not. But it described what it thought needed to be looked at to make that determination and seemed to make a distinction between political blogs and other publications while keeping in mind that there also are social media and that a finding in this medium could affect others. You seem to be making a bald statement here and elsewhere that defamation has occurred. That's unclear. I really was trying to tease out where you think a court should draw a line by way of articulating some standards that would apply whether the speaker or target respectibvely is left or right. While this is a complicated legal question, the court seems interested in how those who participate see it, and much has been said over the last few days. In the end, though, the court isn't going to come up with a complete code but only can deal with the specific case before it. If you want a complete code that's for the legislature.

So let's turn this around. If you're a critic of the Israeli occupation of Palestinian lands since 1967 and for that someone calls you an anti-Semite, I agree with Antonia that that sets up a prima facie claim for defamation. Now what if someone is an anti-Zionist and thinks that Israel as a Jewish state within any borders is the crime against humanity of apartheid--if you think that and call me, as a supporter of Israel's continued existence as a "Jewish state" within the 1967 borders a "racist" and/or "supporter of apartheid" do I have a like claim? If you think they're different, perhaps you can articulate why they're different. And, either way, when do you think a court should draw a distinction between tough debate and actionable comments based on them amounting to the lowering of someone's standing in the community?

Steve C. said...

I am saying that defamation has occurred. That is the claim Dr. Dawg is making in Court, and one I find to be backed by my own understanding of our legal standards (to be clear, I am not a lawyer). If the courts decide that the rules are different for the blogosphere, that would be a new interpretation, and in my view, inappropriate.
The hypothetical situations you are suggesting could actionable for defamation suits would likely be found acceptable as 'fair comment'; dependent on the specifics of course.
There is nothing Dr. Dawg has said that would make calling him a 'vocal supporter of the Taliban' fair comment.
I don't agree with your suggestion that the the blogosphere is unique, or that the established jurisprudence around libel needs to be updated.

Marky Mark said...

Steve, I respect you and that view as a matter of policy, and maybe we should leave it here, but paragraphs 27-37 of the decision are critical and I don't think you can just take what you want from the decision (that there can be a trial) while discarding what you dislike (that there are real issues for a court to go through)--this is a very high level court trying to work through longstanding concepts and apply them to an evolving world and to a specific case before it:

A link to the decision is here.

By the way, during oral argument the justices said they had never themselves been on any blogs. They are saying that someone who is an expert needs to take them through how they really work-I don't know if that is about the expectations people have when they visit a blog and/or comment or the implications of Google and other search engines to see how what is said before a very small audience may have widespread (and permanent) repercussions.

You can disagree with fern's idea as to how those involved might want to cooperate to create clarity for everyone's benefit, but I don't think you can say in light of what the Court of Appeal just said that such clarity already exists.

Marky Mark said...

I believe this thread came up at the long awaited trial yesterday? Was anyone there to provide more colour?

fern hill said...

Amateur reporter gives somewhat confusing account, but yes, indeed, you're right, fern hill makes an appearance.

Marky Mark said...

I am curious why it came up--too bad couldn't take off work to go to Ottawa to listen in...

fern hill said...

I don't know.

There's a post up for further comments.

I gather Connie is acting as her own counsel. That ought to be interesting.

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