Friday 28 March 2014

Defamation in the Internet Age: The Trial

Were my ears burning yesterday?

Frankly, no.

But a comment by Marky Mark on an old blogpost alerted me.

First, the old blogpost, User Pay, from June 2012. The stage was being set for an examination of defamation in the Internet age.

My point then was that no matter who *won*, everyone who participates in discussion forums, blogs, comment threads, and now, I suppose, Twitter and Facebook too, had a stake in the matter.

And that its resolution was going to cost a bomb.

A lively discussion ensued and some strong positions were taken.

Now, finally, the issue is before a court and blogger Marc Lemire of Free Dominion is reporting. He's obviously not an experienced court reporter and his writing could be clearer.

Here's where I come in (his formatting):
There was some back and forth about a blogger named “Fernhill”. Apparently she was a “leftist progressive” blogger who mentioned this case and proposed to her readers to support both “Dr Dawg” and Freedominion.  This apparently made “Dr Dawg” “very upset” and left him feeling “betrayed” by her.  Fernhill was a progressive blogger and he wanted her to “pick a side” and that “it was wrong to raise money for the other side”.
Note that I did *not* raise money for any side; I merely raised the issue of how this slugfest was to be financed.

Lemire is reporting daily (links to other sessions at his blog) and will presumably continue.

I confess I won't be following with bated breath, but the outcome might be interesting. Also of interest is the fact that the judge is a complete newbie to the Innertoobz. She says she's "never been on a blog." Woo.

I'll report if and when there's anything of note.

Added by deBeauxOs: If any new or old readers might be fascinated by the trivia and arcana of this case, the blogger MarkyMark posted this, with a very lively and informative open comment thread, in June 2012.


Maikeru said...

Fern hill, you noted in the 'user pay' link above that Connie is representing herself, which ought to be interesting,

Arguably, Connie herself is the most 'expert witness' available regarding issues involved with hosting a discussion forum in Canada.

Beyond that, Connie has been forced to deal with more contentious litigation arising from discussion forum commentaries than any woman in Canada, and began to represent herself when defending against a mean-spirited copyright suit, for which there were no funds available to hire Counsel.

Whichever end of the political spectrum one adheres to should have little to do with recognizing the important contributions Connie has made/is making to one's ability to communicate online absent the heavy hand of regulatory agencies.

Also, you have erred above by noting Marc Lemire as a FreeDominion member, as Mr. Lemire is posting those observations on his own 'FreedomSite', which has a similar name to FreeDominion.

Marc Lemire is also a former FreeDominion member, alongside other notable internet personalities including John Baglow, Dean Steacy, Richard Warman, M.J. Sheppard, Jay Currie, Harry Abrams, Arthur Topham, the BC Hate Crimes team, and Edward Kennedy.

FreeDominion was reduced to a strictly limited membership following a recently heard 'cyber-defamation' suit, until such time as a Court appeal can be mounted,

More recently, FreeDominion has been closed to commenting entirely during the litigation currently being heard.

fern hill said...

Thanks for clarifications.

Wasn't Lemire a moderator at FD? So, fair to call him "of FD", yes?

I do not want this blog to help fan flames in any direction.

What you say about the number of Connie's battles is true enough. As to her expertise, we'll see, won't we?

Note to other potential commenters: please behave. Thank you.

Maikeru said...

Marc Lemire was never a moderator at FreeDominion, and in fact was banned from there simply for being Marc Lemire - before Connie got wiser to the backdrop of Sec 13.1 litigation.

I've actually met Connie on several occasions, and found her a delightful person with an active and resolute moral compass.

I thank you for cautioning against any effort to diminish this important topic through blazing banter.

fern hill said...

Deleted because of damned tpyo.

I used to visit FD to see what y'all were talking about, but never really got a grip on all the players. So, I stand corrected.

Here's a search of DJ! for "Connie" and if interested readers have a peek, they'll see that Connie and I have sometimes agreed -- usually for very different reasons -- on matters like prorogation, Harper's contempt for democracy, etc.

Keep it respectful and discuss away, if you like.

Maikeru said...

Correction posted to FreeDominion:

I mentioned on 'Xanthippa's Chamberpot' blogsite, and 'Dammit Janet' blogsite, that FreeDominion had restricted the ability to comment to a limited number of members, but that comments had been stopped altogether during the course of the Baglow lawsuit.

The latter claim is an error caused by having logged out either by accident or glitch, and seeing only that seen by the general public when accessing FreeDominion.

Comments are still open to a limited selection of members.

Xanthippa has posted comments on the Hearing after Courtroom attendence.
DammitJanet has commented briefly on the mention of her blogsite during testimony.
Both have been gracious in posting my comments therein.
Xanthippa has posted comments about the case after attending many hours in the Courts where argument is being heard.
DammitJanet has commented briefly on the mention of her blogsite during testimony.
Both have been gracious in posting my comments therein.

Marky Mark said...

I wrote a longish comment which I think was lost. :(

Maikeru. I have the impression that you don`t think there should be defamation laws at all, or at least not in the context of the Internet.

If a large circulation paper reports that I stole money from X and it is false, they will be accountable to me. It is not clear to me why should I lose that if they only put it in their online edition or in a comment they allow to appear in a moderated comments section. Please let me know if I am misinterpreting your comments here and elsewhere including at Xanthippa`s place.

I agree that the case before the court may have far reaching consequences. I do not want to say too much about it because it is the job of the court, and not of online commentators not present in court, to assess all the evidence and apply the law to that evidence. I respect that process. Keep in mind that most trial lawyers will tell you that it is that evidence, as tested in court, (i.e., the facts) that are the crucial determinant of the outcome-there can be some grey areas in terms of how the law is to be interpreted so those facts, but first the facts have to be established.

In any event people should not expect that this case will result in a complete code for what is and is not acceptable in the case of online political debate. That is not the job of this court. If people want that outcome they should start making their views (whether they be to do away with defamation restrictions or to enhance them in this context) knows to their elected representatives.

If you view this broad topic as a matter of policy, it is a bit much to expect these litigants (however passionate and committed they may be) to bear the full burden of what is at heart an adversarial process to achieve a policy outcome.

As for the comment about Connie Fournier being an expert, I don`t think that when the Court of Appeal set aside the summary judgment and ordered a full trial to contain witness testimony, cross examination and expert testimony that they viewed the litigants themselves as the experts.

I both feel sorry for and respect the litigants for being so committed to principle that they have seen this through at great sacrifice. And each side has those supporting them on ideological or partisan grounds. Just remember that the court is not going to approach it that way and so I hope (even if it is hope against hope) that any thoughtful reasoned and legally sound decision will not be subject to partisan attack by the supporters of the side that does not have its view accepted by the court.

Maikeru said...

Thankyou fern hill, not a problem, I compose outside of the comment box because they drive me nuts...=).

I’m inclined to less lawmaking, and more tolerance and that view has been reinforced from witnessing what litigation discussion forum FreeDominion has attracted since mid-2007.

Litigation sparked huge discussion, which carried on for several months, as was to be expected by anyone who has visited an online discussion forum.
FreeDominion discussions were monitored during that period, and sifted for comments to serve in defamation litigation.

What the internet has enabled is ready public access to many otherwise obscure documents which, as an example, when examined in detail and brought to broad public attention, led directly to passage of Bill C-304.

Similar attention is now being applied to defamation litigation, and I expect that after hearing Baglow v Smith et al, the Courts will dramatically relax the limits of what is tolerable to opine online.

The newspaper example you posit illustrates how limits to print media are expected to apply to internet communication. One might absord the entire content of a newspaper where it’s impossible to comprehend all the information available daily on the internet.
As newspapers gravitate towards online editions they lose the gravitas associated with brick and mortar print publications which consciously derive income from opinion.

Where no income is derived from opinion, as in discussion forum commentaries, I don’t believe the same defamation strictures should apply.
In the case under discussion, the future ability to generate income from opinion is in play.

The simplest form of print opinion media is a one page flyer, and perhaps the best example of how a one page flyer can impact the internet was that handed around by William Whatcott, which included a printed url link to a thread Mr. Whatcott had mounted at FreeDominion - in turn serving to trigger CHRC hate-speech investigations.

Internet discussion forums are essentially penpals at warpspeed, in a medium allowing access to unlimited information to hone their views, coupled with almost instant ability to further or challenge any given opinion. Much as we are doing herein.

I’ve opined that ‘cyber-defamation’ suits should be heard in real time, in the medium where they occurred, if only to provide easy access to transcripts.
The biggest obstacle is that, by tradition, ‘the facts’ in legal matters are revealed during court custody of the participants.

Where once one might have to shuffle down to the courthouse to defend a defamation suit, now one is faced with travelling further than from Berlin to Moscow to defend one’s opinion as posted online.

We are of like mind insofar as believing it unfair that the participants should be forced to fund their own Counsel, for what may become a landmark case, but in that regard I have less sympathy for the Complainant in the action, irrespective of who triggered the comments which led there.

Herein the confines of a blogsite comment section, it’s feasible to moderate exchanges between us.
However if we jump back and forth to, say, Xanthippa’s Chamberpot, we are doing what is currently under examination by the courts - absent the spirit of that matter...=)
The middle ground may well be a lightly moderated discussion forum.

I already accept that there will likely be howls of partisan outrage at whatever decision is forthcoming, and only desire that I may express my opinions on FreeDominion if I choose to, so that you may read my opinions there, if you choose to.

Marky Mark said...

I am not sure I quite follow the argument here. If we are talking online pen pals, there is no reason to have the commentary visible to the world-a closed forum would not raise the same issues.

I am trying to tease out what you would like to change-is it a relaxation of defamation laws in the online context or only in the context of online political debate or only in terms of the comments section where the comments are not moderated (and with there being no obligation to moderate them), etc-there are lots of possibilities here.

You could well argue that where it is agreed that defamation has occurred, its having occurred online is far more damaging to the person defamed than if it had only been in print. Once it is online it is online forever. The person could be applying for a job or a loan, etc., and the defamatory comments would come up right away in a Google search. If someone with thousands of followers tweets that I have been convicted for robbing a bank, and I haven`t, I want a remedy.

If I am the person defamed I do not see why I should be denied a remedy because my defamer did not earn income in the exercise-I only care about how I have been damaged.

Whatever it is that you may be envisioning as a more perfect regime from a policy point of view, it is not reasonable to expect this judge to just make that up. Judges are not meant to legislate. What a judge can do is apply the legal principles to the facts. That may well be harder than it sounds, as there are likely some judgments to be made--that is the case in most trials.`

You may be asking for more than the defendants in the case are asking for--I suspect they will simply argue that no defamation has occurred and with no change in the law required to support that conclusion.

Maikeru said...

I’m not sure I am arguing here, though ‘keyboard comrades’ may be more apt than ‘warp-speed pen-pals’.

It’s not any change of laws I want, it’s the conservation of my right to volunteer my opinions online in an open and lightly-moderated discussion forum.

Common sense only prevails as long as it’s exercised, and the nonsense that prevailed with use of Sec 13.1 indicates a lack of foresight in academia, legislative bodies, and the Justice system that bodes ill for further efforts to ‘tame’ the internet..

I do know that human resource personnel scan the internet for information on job applicants, especially Facebook - the mother of all tattles.

I believe that it’s wise to maintain as much anonymity as is reasonable online, which precludes posting personal information to view a site, but includes same when posting to a site.

Multiple lawsuits against FreeDominion hosts and members have not been conducive to attracting new members who post interesting opinions, but until the hosts restricted access to the site there were many thousands of views of certain threads over long duration.

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