Dr. Dawg Fundraising Efforts, Part II

...start with the auctioning of :

"Emergency Measures" (Sono Nis, 1976). "'Emergency Measures' establishes John Baglow as one of the few North American poets with vision, intelligence, wit, linguistic equipment and technical competence to command serious reading and response anywhere on Earth. In any language." ~J. Michael Yates 

A rare first edition, personally autographed for the successful bidder.

Baglow is of course the name Dawg uses out in the material world.

Put your bids in here.

I wrote about efforts to help the good dawg with his legal expenses here.

Help Out With Dr. Dawg's Legal Bill

Richard Warman has launched an Indiegogo campaign to help pay some of the legal expenses Dr. Dawg incurred during his legal battle with the Fourniers and others at FreeDominion.  You can find out more about it here.  They've collected about $400 in a couple of hours.  And I too will be donating $.  Very soon.  As soon as we pay for my dear mother's eye.  She threw it at dad and it broke against his head.

As for the Dawg's case, it's got even the lawyers confused.  Richard says:

In the weird world of libel law, the judge found that John had been defamed, but that because John had supported basic legal rights for child soldier Omar Khadr, the comment that John was a supporter of the Taliban was 'fair comment' and therefore legally okay.

As for me,  my understanding is that  a defamatory statement states a false fact and therefore cannot support an opinion protected by fair comment. The judgement in this case says both that the statement was defamatory AND that it was protected by fair comment, which sounds contradictory.

So I don't get it.

Andrew Weaver Vs. The National Post: Linking To Defamation In Canada

A number of stories have already appeared re the successful lawsuit launched by climate scientist (and now Green Party MLA) Andrew Weaver against writers at The National Post.  Here's a pretty good one, and the decision in its entirety can be found here.  I can't add much to what has already been said, but the case has a couple of interesting facets beyond what people have generally noted.

One is how this case elaborates on the SCC decision in Crookes v. Newton.  Back then I wrote that the Supreme Court seemed to be providing a blanket exemption for linking to defamatory material. That is, if you simply linked to the offending material without describing it, independent of the context around your link, you were in the clear.  I argued:

I publish a post which says:

"John Doe is a murderer."

I am soon approached by Mr. Doe's lawyers.  But then Bob writes a post which says

"BCL finally tells the truth about John Doe."

Not having repeated any of the defamatory content, the SCC ruling lets Bob off Scot free.  Now, you might argue that's fine.  Bob doesn't control what's at the other end of the link.  Maybe it's been changed in the meantime.  Why should he be responsible? And etc.

Okay, but lets assume that Bob knows exactly at the other end of the link and is in clearly endorsing the defamatory content. And lets assume that in context it is absolutely clear that Bob's intent is to ruin the reputation  of John Doe, as much as mine was.

The defamatory content was not repeated in his post, so he suffers no consequence.  Period.  End of story.  Several justices dissented on this point, suggesting that context should be taken into consideration, and endorsing defamation should be considered defamation.  The majority seems to have said NO.

If you read the original, there is some back and forth on this in the comments.  After all, several judges in concurring opinions invoked the notion of "context".  But these nuances didn't make the majority decision, and isn't that what the law becomes?

So, Crookes v. Newton is mentioned about a dozen times in the Weaver decision.  In particular, the NP lawyers argue that "...republication cannot be a mere hyperlink as stated in Crookes. Thus, the “story tools” on the National Post website do not qualify as authorization. The evidence established these are merely permitted hyperlinks back to the original article."  And while noting that there is room for "nuance" in deciding whether someone can be liable for hyperlinking Judge Burke seems to accept this reasoning.  Or at least accepts that this is what the SCC decided:

[270]     In Crookes at para. 20, the Supreme Court of Canada acknowledged the defence of innocent dissemination, which developed in an earlier era for secondary distributors such as booksellers, will likely come into play with secondary Internet publications. The Court recognized however that, on the Internet, courts must be careful to develop the law in a way that does not unduly stifle the free exchange of ideas. As such, in Crookes, the Court held hyperlinks are not publications.

[271]     The Supreme Court of Canada in Crookes concluded while the legislator has created a specific presumption a publication in respect of broadcast, it has not done so in respect hyperlinks and therefore the court should refrain from creating a new one: at para. 108.

So there you have it.  For reasons given above, I think the SCC made a bad call in Crookes v. Newton.  But under current Canadian law, you can link to defamatory material even where circumstances indicate that you are doing so out of evil intent.

Ezra Manouvers

From Joe Brean's twitter feed, the rumours are confirmed:

O yea, O yea, O yea, court is in session. First up, motion to adjourn. At this rate, we'll hear opening statements next year.
— Joseph Brean (@JosephBrean) January 6, 2014

Ezra Levant has been trying to get a new lawyer since October. Christopher Ashby, his lawyer of record, is beside him. No explanation.
— Joseph Brean (@JosephBrean) January 6, 2014

Khurrum Awan opposes the adjournment. Judge says he has "significant justification" to throw away his costs.
— Joseph Brean (@JosephBrean) January 6, 2014

Brian Shiller says his client Mr. Awan "vigorously opposes" adjournment. "We were ready to go [last fall]," he said. Ready again now.
— Joseph Brean (@JosephBrean) January 6, 2014

Same nonsense Ezra tried in Vigna v. Levant.  Lets hope the judge doesn't allow it.

Update: Crap, he did!  But he seems to dinged The Ez for some dough:

Levant trial adjourned to March 3. Cost him a few bucks. Iain MacKinnon, known for media work in the Rob Ford follies, is his new counsel.
— Joseph Brean (@JosephBrean) January 6, 2014

Warman Vs. FreeD: Warman Speaks

Richard has his own brief account of his case and its outcome here.  The most interesting bit is his interpretation of the fact that punitive damages were awarded.  He quotes  Justice Peter Cory of the Supreme Court:

“Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high‑handed that it offends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner.”

Over at FreeD and elsewhere they are still claiming they're victims, or well-intentioned critics of a human rights system gone bad, or whatever.  The jury did not see it this way.  The jury thought they were assholes, and sought to punish them for the fact.

A Note On Ontario Defamation Law

...re defamation on-line:

Single Publication Rule Rejected in Ontario

The Court rejected the defendants' argument that the American "single publication rule" for mass publications should apply. This rule holds that a plaintiff alleging defamation has a single cause of action which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold. As the Court explained, "the entire edition of a newspaper, book or magazine is treated as a single publication when it is first made available to the public. Later distributions of the same edition are relevant to the assessment of damages but do not create a new cause of action or a new limitation period." If the single publication rule were to apply in Shtaif, the limitation period applicable to the plaintiffs' claim – including both the print and online articles – would have expired six weeks after the print article was first published.

Following courts in England, Australia, and British Columbia, the Court rejected the single publication rule in Ontario as being inconsistent with the limitations provisions of the LSA, and because the Court had previously affirmed the traditional English rule that "every republication of a libel is a new libel." Even if the single publication rule were to be considered in Ontario, the Court stated that it should not be applied across different mediums of communication. This aspect of the ruling was motivated by a concern of a potential injustice that might arise where the original publication was in print form, perhaps in a magazine with a limited circulation and lifespan, as opposed to a republication of that same publication on the Internet, where its circulation may be vast and its lifespan potentially unlimited. In this portion of the ruling, the Court echoed prior statements to the effect that defamation on the Internet is potentially more harmful than defamation through traditional print media.

Shtaif makes clear that where an alleged libel is republished across different mediums, including the Internet, those republications will be treated as distinct libels. As a result, plaintiffs retain significant flexibility in choosing which allegedly libelous publications they might wish to sue upon.

So there you have it.

You Can Now Sue A Pseud

Former Canuck's GM Brian Burke has been cleared to serve the people who allegedly defamed him over the Internet, over the Internet.  The defamation was spread through a number of on-line message boards, so here's what Burke's lawyers will do (the full court docs are here):

The document goes onto to say that, given the way these boards are typically structured, the recipient will "probably" see the private message, and respond to it or not.  In addition, Burke will (from The Province  story linked above):

...be required to advertise in a national newspaper requesting the individuals respond to the lawsuit.

I see several shortcomings with this approach.

For example, the defendants could, upon reading about Burke's successful court application, abandon their forum accounts to avoid the private message.  And who reads the papers these days anyway?

And of course, even if it can be confirmed that the defendant received the message, Burke's lawyers still don't know who they are.  But if  they still haven't been ID'd at the end of the day, collecting damages is impossible.

And of course, even if you do attach a real person to a forum account, they can still use the identity theft defense (ie "someone else hacked my account" ).  To this end, it might be better to employ a public message.  These were hockey forums, so for example Burke's lawyer could drop a link to the legal documents into the middle of a discussion in which a particular defendant was a participant.  If, in thus participating, the defendant was engaged in his typical forum behavior, the identity theft defense would be less plausible, especially if they responded publicly to the message containing the link.

PS.  This post updates this post.

Developments In On-Line Defamation Law

From Colby Cosh, the hirsute one himself:

Early commentary on Burke’s lawsuit over claims he had an affair with a broadcaster was focused on the difficulty of tracking down internet anonymice and serving them with the right papers. The established pathway is to go through internet service providers to get them to disclose the identities behind IP addresses—but privacy-conscious tech firms don’t like to give up that info without a court order, and if Johnny Flapgums did not happen to post from home or work, a plaintiff is more or less out of luck anyway. In an unforeseen development, Burke is now asking the court to let him sue internet usernames as usernames, notifying the users of the action through the personal-messaging apparatus of the sites on which they posted their allegedly scurrilous comments.

If Burke succeeds with today’s motion, defendants such as “CamBarkerFan” and “Slobberface” will be forced into a tricky choice between fighting the lawsuit, and thus exposing themselves to a verdict, or laying low and allowing a default judgment to be entered against them, thus exposing themselves to the risk of being identified and penalized later without any chance of a defence.

If this kind of thing had been allowed a few years back, the whole slow process of serving anonymous posters involved in theFreeD vs. Richard Warman case would have been made alot easier.  To quote myself, tracking them over the Net at the time involved:

...going from blogs to the comments section of online newspapers to flickr and elsewhere. 

Essentially, you are hoping that the defamer behind the pseud got lazy and at some point wrote something that connected the handle they used to produce the defamation with a separate profile employing their real name.  Then you pore over their on-line traces looking for that link.  So, for example, Droid1963 wrote a blog under his real name, and linked to a photo-bucket album.  He was eventually forced to settle.