Thursday, March 26, 2009

Warman Vs. Fournier: The Lawyers Respond

Two of them, at least, and they don't like it. Here's Gary Wise, and here's Michael Geist. Since they both make similar points, I will let Mr. Wise speak for both:

While I understand the freedominion authors to be an extremely tempting target to many in the blogosphere, little solace should be taken from this ruling.

An order for disclosure may have been justifiable if the statements made by the anonymous posters were, on their face, apparently actionable.

The Court's disinclination, however, to engage in any factual analysis of the alleged defamation or the necessary balancing of competing interests has created a dangerous precedent that should not be allowed to stand.

Based on Warman ruling, the mere commencement of a court proceeding may now give rise to an automatic entitlement to this form of disclosure.


Mark Richard Francis said...

I read the ruling. Geist is morally right.

Still, my own lawyer -- one of the best libel lawyers in Canada -- advised me wrt a related case to mine that there was no point fighting a motion calling for a certain wiki to turn over IPs because he didn't see any judge blocking a plaintiff's rights to determine the identity of defendants.

Still, one of the problems the Warman defendants have is that they choose to assail the law by defaming individuals. Stupid.

The solution in this case would be for the publisher (Free Dominion) to assume all liability, and the IPs released only if they lose and fail to pay up.

As IP information gets old rather quick, though, someone would have to be held to securing the identities early in the proceedings.

Next, should anonymous defendants be able to hire representation without revealing themselves to the plaintiff? Identity to be revealed only if they lose? Problem: Plaintiff has the right to cross examine.

I understand that Free Dominion no longer tracks IPs.

How seriously should anyone take the accusations of people who refuse to identify themselves, and who rarely directly cite or even identify original sources?

Political speech is very important to democracy as it is the right which secures all others.

I would think the better answer to all this mess would be for right-of-reply to be utilized first.

buckets said...

I agree with Mark's suggestion that one way forward would be that the republisher is faced with a choice -- either accept liability for the statement that is republished or produce the identity of the responsible person.

As for right-of-reply, I'm less attracted. One of the things about the Warman case is that falsehoods are easier to create than to expose. It took me a couple months of patient slogging to debunk the idea that Richard Warman wrote the Cools post, which was spread across the internet world in a day, even being republished by the National Post. It is not realistic or fair to make someone about whom a falsehood is spread to disprove the falsehood.

Mark Richard Francis said...
This comment has been removed by the author.
Mark Richard Francis said...

Right-to-reply is not a cure-all, but in many cases -- though maybe not this one -- it can repair most of the damage done.

It couldn't be mandatory without a judge's order, and wouldn't bar a plaintiff from proceeding, but would additionally mitigate damages.

So to extract yourself from most of a libel tort, apologize, and allow the would-be plaintiff some space to present is side. In most cases, the residual damages would not be sufficient to justify a plaintiff moving forward.

Yes, there's problems with it, but so to are there problems with our current system, which favours taking years to resolve matters at tremendous costs, in the meantime squashing commentary on the latter at hand.

buckets said...

Thanks, Mark. I'm torn here, a little bit, between what I know of your case and what I see going on in the Warman case. The one you're involved in seems to be one where a right-of-reply may have helped.

In the case of Warman and the Cools-post allegation, he did in fact deny under oath making that post, but this fact only brought the additional libel that he had lied under oath. And I can't realistically see that any reply that he could have posted could have achieved any mitigation at all.

But when we look at defamation in general, which is more typical of what is brought before the court?