Blog vs. Blog: Ottawa judge throws out defamation lawsuit

[Mark Fournier]

Blog vs. Blog: Ottawa judge throws out defamation lawsuit

By Andrew Duffy
The Ottawa Citizen
September 12, 2011 7:03 PM

OTTAWA — An Ontario Superior Court judge has tossed out a defamation suit launched by an Ottawa blogger, Dr. Dawg, who claimed that an Internet chat room post damaged his reputation by calling him a Taliban supporter.

Mr. Justice Peter Annis’s decision adds to the emerging body of law that governs the Internet’s unruly marketplace of ideas. It gives political bloggers new licence to slug it out online – and even employ the occasional low blow when the debate turns nasty.

“If this decision stands, it makes a Wild West saloon out of the blogosphere. It becomes a place where normal defamation law seems to be suspended,” said Ottawa blogger John Baglow, a.k.a. Dr. Dawg.

The retired bureaucrat and former executive with the Public Service Alliance of Canada vowed to appeal the decision.

Judge Annis ruled that Baglow was not defamed last year by a post that said he is “one of the Taliban’s more vocal supporters.”

The statement was made on the Free Dominion website in the course of an acrimonious debate — taking place on three websites over several days — about federal politics and the legality of Canadian Omar Khadr’s military trial in the U.S.

Free Dominion, a chat site that bills itself as “the voice of principled conservatism,” is operated by Mark and Connie Fournier of Kingston.

In an interview with The Citizen, Connie Fournier hailed the judge’s decision as an important victory for political bloggers.

“We feel the defamation law is outdated and really hasn’t progressed with technology,” she said. “So we think this is a step in the right direction. The judge acknowledged that a discussion in the blogosphere is a far different thing than publishing something in the Ottawa Citizen.”

Online political forums are honest, passionate and conversational, Fournier said, and should not be held to the same standard as other published material. “If you do that,” she said, “you’re really opening the way for a lot of frivolous lawsuits: the courts could be overtaken by people saying, ‘He called me an idiot.’ ”

Baglow, a left-wing political blogger, sued the Fourniers after they refused to take down the post, made by Roger Smith, of Burnaby, B.C., on Aug. 11, 2010.

Baglow said the post unfairly equated his call for Khadr’s repatriation with being a Taliban booster. Although opposed to the war in Afghanistan, Baglow said, he is a patriotic Canadian who considers the Taliban a dangerous, tyrannical regime.

The Fourniers, however, insisted the comment was a normal part of the rough-and-tumble blogosphere; they asked Judge Annis to dismiss the lawsuit before it went to court.

In his recent decision, Annis sided with the Fourniers, ruling the case raised no genuine issue for trial.

Given that the posting amounted to an opinion, rather than a statement of fact, it was less likely to damage Baglow’s reputation, the judge said, since opinions are not as readily believed.

What’s more, Annis said, in the context of a political blog in which insults and invective are regularly traded, the comment was not defamatory.

The judge noted that former NDP leader Jack Layton was often referred to in the blogosphere as “Taliban Jack” without legal consequences. “No reasonably informed Canadian would conclude that Mr. Layton was defamed by being called Taliban Jack, understanding that this was simply a catchy label attached to him by conservatives to showcase what they consider the weakness of the liberal argument in this political debate,” Annis said.

“Reasonably informed readers of these blogs would understand that labelling the plaintiff (Baglow) a supporter of the Taliban as performing the same function and would not consider the comment capable of lessening the reputation of the plaintiff.”

The judge said the blogosphere offers a different context for libel than books, magazines or newspapers. Internet blogging, he said, is “a form of public conversation” that allows people to respond immediately to defamatory statements.

To that end, Annis said, Baglow could have removed the sting of the offending post by a rejoinder that set out his opposition to the Taliban.

“More importantly to the issue of context,” the judge said, “the blogging audience is expecting and would indeed want to hear a rejoinder of this nature where the parry and thrust of the debaters is appreciated as much as the substance of what they say.”

Instead of taking the opportunity to respond, however, Baglow assumed another Internet identify and raised the possibility of a lawsuit.

Annis suggested Baglow showed bad form by “walking off the blogging stage” instead of answering the insult, which he said was consistent with the contemptuous tone of other exchanges in the debate.

The ruling has received considerable attention in the ever-boiling blogosphere.

Baglow has already posted about it on his Dawg’s Blawg: “Needless to say, the mudfish on the far right are having a frenzied wankfest over this decision,” he wrote, “but I can hardly blame them for that.”

On Free Dominion, Mark Fournier wrote: “He (Baglow) tried to get the court to financially ruin our lives because he doesn’t like our website. That he lost is justice.”

© Copyright (c) The Ottawa Citizen

Read more: http://www.ottawacitizen.com/news/Blog+ ... z1XmxKCNTi

[RedDog]

I'm not a mudfish and I'm not having a "frenzied wankfest", whatever that is. I doubt anyone else here is as well. Secondly, there is no shortage of people who actually DO support the Taliban, fundamental islam and even sharia law, not to mention the slaughter of western infidels and western culture. I'm not sure how saying so or suggesting such even in jest can be defamation. In many cases it's true. How many cabbies at YEG high fiving and dancing on the arrivals ramp on 09-11-01 have ever been charged with a hate crime?

[Winston Smith]

Baglow has already posted about it on his Dawg’s Blawg: “Needless to say, the mudfish on the far right are having a frenzied wankfest over this decision,” he wrote,

Classy

Baglow is super classy!

[free_life2]

Mudfish? I am calling my liars Shyster, Shyster and Shyster...

This judge is a keeper, we need more like him.

[Maikeru]

“If this decision stands, it makes a Wild West saloon out of the blogosphere.
It becomes a place where normal defamation law seems to be suspended”

Who could have foreseen that the fate of the blogosphere would hinge on the tawdry reputation of a bloody hypocrite himself given to making scurrilous claims about other bloggers, such as the following statement, made on Jay Currie's blogsite November 8, 2009 :

And you, Maikeru, are a Nazi.
That’s abundantly clear by now.
Why do you cowards never have the guts to admit what you are?

I urge readers to follow the thread at FreeDo.
That place is quite the nest.

Note that the childish rant by Dr. John/Dawg Baglow encourages fellow Canadians to visit FreeDominion.

[Peter O'Donnell]

Don't think I can comment as a party to a case that is awaiting appeal, except to say that the motions court judge gave a more complex verdict than some media reports would have us believe. He said a lot more than merely "defamation in the blogosphere does not matter." And I would dispute the idea that he said that at all, I think that's a distorted assessment of his findings. However, I would point you to the document in another thread and just say, read it, and see what he actually did say.

[Maikeru]

Don't think I can comment as a party to a case that is awaiting appeal

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.
- T.S. Elliot -

[Connie Fournier]

Bahahahahaha! Check out the comment by the illiterate guy with the girl's name. (6:32am)

These people are so idiotic! Complaining that the standard for defamation on the internet is too low while heaping defamation on US!

At least this moron was honest, though. He doesn't really care about this case, he just wants "Freedom Dominion" shut down.

[Mark Fournier]

Take away the venom and our political opponents have nothing.

[Connie Fournier]

It is ironic that we are fighting to protect the right of Danskee to freely slag us, and s/he is too thick to realize that, if we lose, it means s/he will be guilty of defamation for trashing me on the Ottawa Citizen site. How can these people be SO dumb??

[Red Green]

It is ironic that we are fighting to protect the right of Danskee to freely slag us, and s/he is too thick to realize that, if we lose, it means s/he will be guilty of defamation for trashing me on the Ottawa Citizen site. How can these people be SO dumb??

I would suggest that Danskee is probably protected from lawsuits, not by legal precedent, but rather by the ages-old law that you can't draw blood from a turnip.

Let's face it, those who spent their life living off the public teat have never earned an honest day's pay and those that find common ground with such people don't understand the creation of wealth, have no respect for what it takes to build wealth, and don't care about the protection of it.

[Connie Fournier]

http://www.jdsupra.com/post/documentVie ... 660662caec

[Freedom Onion]

On Free Dominion, Mark Fournier wrote: “He (Baglow) tried to get the court to financially ruin our lives because he doesn’t like our website. That he lost is justice.”

Awesome, awesome quote.

[WestViking]

Those who follow politics and participate on political forums are guided by what they see and hear on the Commons Question Period, House of Commons (and legislature) debates, election advertising and election forums as to what is allowable in public political debate. Our politicians' lack of decorum and substance during debate and discussion has set the bar for political discussion at "underhanded".

Why would anyone be surprised when Internet forum debates break down into similar personal attacks? This is the stuff and substance of what we hear and see from our politicians every day that the house is in session.

Politicians enjoy immunity over oral statement because they understand intemperate comments are made in the heat of debate when tempers flare. While parliamentarians have privilege over oral statements (slander) they are extremely careful when they express themselves in writing (libel). Parliamentary privilege does not extend to public publications, only to in-house communications.

Without the protection of parliamentary privilege, our courts would be bulging at the seams with politician vs. politician slander actions. When you consider the issue, politicians with their privileged status are singularly ill-equipped to write libel and slander law. If our legislators were to remove the privilege from parliament and the legislatures, our libel and slander laws would quickly change.

Few people understand that fibre optical cable and improvements in the Internet equipment and programming allows for real time exchanges very close to the cut and thrust of parliamentary debate. A participant needs only time to read the last entry from another participant or participants, and type his or her reply.

Comparing Internet blogs and forums to the regular print media is as silly as contending that a telegram is no different from the text message just received on your smart phone. Most of our politicians are computer and Internet illiterate. They have no idea that if they allow posting to the internet to be treated as any other print publication, every e-mail they have ever written, in office or out, becomes potential evidence in a libel action.

The freedom of expression is what gives life to democracy. Open, free-wheeling debate and discussion of ideas and issues is what prevents politicians from becoming our masters. We need to hear the bad ideas with the good in order to make up our minds. Those who habitually demean their opponents without any substantial argument to present do not last for long on Internet forums. We get enough of that nonsense from election ads, thank you.

Stifling Internet debate with libel actions would be a serious mistake. We need to make allowances for the real-time cut and thrust of Internet debate. After all, the objective of any internet debate is to sway opponents and readers to your view. Like our politicians, Internet debate participants need protection from intemperate comments they might make in the heat of debate.

There has to be leeway for those who express honestly held beliefs. If it looks like a duck, walks like a duck and quacks like a duck, no one should sued for expressing the opinion that he has encountered a duck. Too many individuals with the means to hire a lawyer and file an action decide they have a Stirling reputation they can repair retroactively in the court of public abuse. It is refreshing to see that at least one judge sees through the sham and refuses to act as a junior grades school yard referee.

Some history:

Haxey's case (1397) Rotuli Parliamentorum (iii) 434, is a leading case in English law that established the right to free speech within Parliament.

In January 1397, Sir Thomas Haxey presented a petition to Parliament, criticising the costs of King Richard II of England's household. The king was affronted and, with the collusion of Thomas Arundel, insisted that Haxey be punished for treason. Haxey was deprived of his title and his possessions. On deposing Richard in 1399, Henry IV of England successfully petitioned Parliament to reverse its judgment against Haxey as "…against the law and custom which had been before in Parliament."

Strode's Case 3 Howell's State Trials 294 is one of the earliest and most important English cases dealing with parliamentary privilege.

Richard Strode was a Member of Parliament from Devon, England. In 1512, he introduced a bill to alleviate the harsh working conditions of tin miners on Dartmoor. However, the local Stannary court had jurisdiction to enforce a law against the obstruction of tin mining and Strode was prosecuted and imprisoned before he could travel to Westminster to present his bill.

In response, parliament passed Strode's Act, now named the Privilege of Parliament Act 1512 (4 Hen. 8 c. 8):[1]

...AND over that be it enacted by the said authority that all suits, accusations, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges and impositions put or had or hereafter to be put or had unto or upon the said Richard [Strode] and to every other of the person or persons afore specified, that now be of this present parliament or that of any parliament hereafter shall be, for any bill speaking, reasoning, or declaring of any matter or matters concerning the parliament to be convened and treated of be utterly void and of none effect. And over that be it enacted by the said authority that if the said Richard Strode or any of all the said other person or persons hereafter be vexed, troubled or otherwise charged for any causes as is afore said, that then he or they and every of them so vexed or troubled of and for the same to have action upon the case against every such person or persons so vexing or troubling any contrary to this ordinance and provision, in the which action the party grieved shall recover treble damages and costs, and that no protection, essoin, nor wager of law in the said action in any wise be admitted nor received.

In 1629, in the prosecution of Sir John Eliot (R v. Eliot, Hollis and Valentine), the court held that Strode's Act was a private act and applied to Strode only and not to other MPs. However, in 1667, both the Commons and the House of Lords carried resolutions declaring Strode's Act a general law:

... and that it extends to indemnify all and every the Members of both Houses of Parliament, in all Parliaments, for and touching all Bills, speaking, reasoning, or declaring of any Matter or Matters in and concerning the Parliament, to be communed and treated of, and is only a declaratory law of the antient and necessary Rights and Privileges of Parliament.
This establishes the common law that privilege extends beyond mere protection against action for defamation or treason. The law was subsequently codified as Art. 9 of the Bill of Rights 1689.

CONCLUSION:

The principle of protecting the freedom of expression dates back over 600 years although the protection has been largely confined to politicians. Our Charter of Rights and Freedoms provides all Canadians with the freedom of expression. Democracy depends on ensuring that the freedom of expression is not stifled by those who want to limit political discourse on the Internet to serve a personal agenda.

If we allow that, our democracy is dead.

[WestViking]

BUMP