20 Sep 11 | Uncategorized
This is a guest post by Catherine Tsalikis
The advent of the world wide web has necessitated a shift in legal thinking with regards to cases of libel. In Baglow v. Smith, 2011, an Ontario Superior Court justice has issued a decision with significant effects for Canadian free speech rights pertaining to blogs and other internet forums which host political debate and discussion.
Justice Peter Annis has dismissed a defamation claim brought by Ottawa’s John Baglow, former executive with the Public Service Alliance of Canada and left-wing commentator (known in the blogosphere as “Dr Dawg”). Baglow’s action was brought against Connie and Mark Fournier, operators of right-wing blog FreeDominion, and right-wing blogger Roger Smith (aka “Peter O’Donnell”).
In a manner common to exchanges between ideologically-opposed commentators, Baglow v. Smith arose from an escalation of online quips and jabs, during which Smith ultimately described Baglow as “one of the Taliban’s more vocal supporters”. The basis for this assertion stems from Baglow having previously argued in support of the repatriation of Omar Khadr from Guantanamo Bay to Canada, and having criticised the Canadian government for failing to uphold international law through the United Nations Convention of the Rights of the Child.
Of course, it is a long leap from Baglow’s criticism of Khadr’s treatment to the conclusion that the blogger is an adamant supporter of terrorist groups. Nonetheless, Annis J found in his summary action that there was no issue for trial, noting that, even accepting the low threshold standard for libelous statements, “declaring someone a supporter of the Taliban is at the absolute borderline of a comment that could be said to diminish the esteem of the plaintiff in the minds of readers of a political blog where insults are regularly treated as part of the debate.”
Furthermore, Smith’s words were not intending to state a known fact, but rather his own view – opinion comments are considered to be less serious in defamation cases. Annis J concluded that “the opinion expressed by the defendant lies at the heart of the debate between the factions represented by the parties and whether the underlying facts are true or not, readers following the blog would understand the comment as being one side of the debate”.
Significantly, followers of defamation law are touting this case as groundbreaking in the realm of online free speech, gleaning that Annis J’s decision points to a different standard of defamation between statements made on blog forums and those made in other, more permanent print material. Indeed, the decision suggests that the contemporaneous nature of online debate allows recipients of written attacks to “take the sting” out of potentially libelous comments by responding quickly. Baglow could have responded to Smith’s “Taliban supporter” label by defending himself as the online community would usually expect bloggers to do in these heated, back-and-forth exchanges, but instead chose to resort to legal means.
More generally, Canada has indeed seen advancements in free speech guarantees. Following a Supreme Court decision in 2009, journalists and bloggers are now able to use the defence of “responsible communication on matters of public interest” as a defence against libel. Of course, in this case, Smith’s statement wasn’t found to be libelous in the first place, so one would perhaps be too quick to claim that this decision unequivocally means that anything — or at least more — goes in the blogosphere. Crude, vulgar and boorish commentary is a staple of many online forums, but we would have to wait for a case involving a truly libelous statement to better judge whether the Canadian standard of defamation has been lowered for cyber-speak.
In the meantime, John Baglow has announced on his blog his intention to appeal the decision to the Ontario Court of Appeal.
Catherine Tsalikis is an editorial assistant for The World Today magazine at Chatham House
09 Sep 11 | Index Index, minipost
A libel lawsuit filed by Donald Trump has been brushed aside by a New Jersey appeals court yesterday. The lawsuit was filed against author Timothy L O’Brien after he wrote a passage suggesting that Trump was worth substantially less than he claims. O’Brien cited three anonymous sources who valued Trump’s worth at between $150 million and $250 million, not the $7 billion he estimates. Trump filed the lawsuit in 2009, when it was rejected. The appeals court affirmed the lower court ruling, and declared that they did not find the existent of ‘actual malice’ in the matter.
09 Sep 11 | Uncategorized
Dan Snyder is perhaps the only man in Washington less popular than Congress. The long-running owner of the Washington Redskins NFL team, Snyder is best known for alienating fans, sparring with local media and pricing the team’s diehards out of their tickets. He’s also the most visible face of a routinely disappointing franchise that hasn’t won a Super Bowl, to the locals’ deep chagrin, in 20 years.
Dave McKenna, a writer for the Washington City Paper alternative weekly, handily chronicled many of these blemishes last November, at the tail end of another losing season, in an A-to-Z cover spread titled “The Cranky Redskins Fan’s Guide to Dan Snyder.”
Then, as if to further illustrate McKenna’s point, Snyder sued the paper for libel.
The lawsuit, first filed in February in New York State, immediately reeked of the worst kind of defamation litigation: that of an obscenely wealthy plaintiff looking to bankrupt his critics in court, regardless of the merit or eventual outcome of the case. In fact, Snyder’s lawyers communicated exactly this intention when they sent a letter on Redskins letterhead last fall to the investment group that owns the City Paper, concluding with this warning shot:
“Mr. Snyder has more than sufficient means to protect his reputation and defend himself and his wife against your paper’s concerted attempt at character assassination. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.”
States across the US have been passing laws to prevent deep-pocketed, litigation-happy bullies from filing exactly these types of suits to intimidate critics from making protected speech. There’s even a name for the strategy: Strategic Lawsuits Against Public Participation. The statutes pre-empting them are commonly known as anti-SLAPP laws, and, in fact, the District of Columbia put one on the books this spring.
Among other things, it requires that plaintiffs demonstrate early in the legal process that they’re likely to prevail on the merits of a complaint (as opposed to bankrupting a defendant in discovery before the question of merit ever comes before a judge).
Now Snyder is challenging that law, too, broadening his sights from the City Paper to a legal protection that’s enjoyed by citizens throughout the District. And the city has had to intervene in the lawsuit to defend its law, with an amicus brief filed by the ACLU, the American Society of Newspaper Editors, the Society of Professional Journalists and a whole slew of other media organizations.
Back in April, Snyder moved the suit from New York to Washington. The City Paper then requested the suit be dismissed in June under the new anti-SLAPP law. Snyder’s lawyers, in response, are arguing that the anti-SLAPP law itself is unconstitutional (according to a convoluted legal arrangement that restricts the District of Columbia from governing itself in the same way other states and municipalities in the U.S. can).
The case has since evolved well beyond the small-bore debate over the tongue-in-cheek tone of McKenna’s original story and into a much larger one over the right of media outlets — and others — to legitimately criticise wealthy people without fear of legal harassment.
This much at least is clear: When the case finally reaches its conclusion, Snyder will have provided enough material to supplant the Cranky Redskin’s Guide with an entire book.
05 Sep 11 | Index Index, minipost
In what is reportedly the first time that a Philippine Supreme Court justice has filed a libel case against anyone including a journalist, reporter Marites Danguilan Vitug was forced to post P10,000 (145 GBP) bail on Friday on charges that she had defamed Supreme Court Justice Presbitero Velasco in a recent book. In the book, Shadow of Doubt, Vitug quoted residents of the Marinduque constituency as saying the Supreme Court justice was active in inviting two local officials to run with his son as councillor and promising to underwrite campaign expenses.
