“But what good came of it at last?”
Quoth little Peterkin.
“Why, that I cannot tell,” said he,
“But ‘twas a famous victory.”
The judgement is in. Bottom line: I lost my defamation action against the Free Dominioneers.
Like defamation law itself, however, the judgement is anything but black and white. There is enough in it, I think, to give all parties pause.
Madam Justice Heidi Polowin’s text contains many twists and turns, and for the most part is clearly written. She found that I had, in fact, proven defamation. In addition, the spurious charge by Connie Fournier that I had destroyed evidence was slapped down—hard. Finally, the Fourniers were found to be the publishers of the material in question, not merely, as they argued, the passive owners of a kind of community notice board. That, according to Madam Justice Polowin, was “disingenuous and ignores reality.”
But the case eventually turned on the axis of “fair comment,” and existing law. Reasonableness is not a legal test when it comes to public utterances: all that a successful defence requires to defeat a defamation action is to show that a statement constituted comment, not fact; had a basis in fact (without itself having to be accurate or factual); and concerned a matter of public interest.
Madam Justice Polowin considered the claim of my alleged support for the Taliban—the cause of my action—to be mere opinion, therefore comment and not, despite how it looked, a statement of fact. My longstanding support for the legal and human rights of Omar Khadr might be construed, she said, as some kind of objective support for the Taliban, even if that is unreasonable on its face. And obviously there was and is much public interest where Omar Khadr is concerned.
The plaintiff and the defendants, she said, were each successful and unsuccessful. And for that reason—she awarded no costs. It was evident that she did not feel my bringing the action had been unreasonable.
So, after all the Sturm und Drang, this is what we are left with:
A Pyrrhic victory for Roger Smith and the Fourniers. After two unsuccessful preliminary motions by the defendants, one overturned on appeal and the other (to remove my lawyer from the case) kicked smartly out the courtroom door without our side even having to be heard, I collected $18,000 in costs. Madam Justice Polowin’s decision not to assign costs cannot be welcome news. The Fourniers lost a case last year against my friend Richard Warman, and were assessed damages and costs of $127,000. They are presently trying to muster an appeal, which will not come cheap.
The Fourniers are publishers. This case clarifies that those who run message boards like Free Dominion are legally liable for the content that appears there. This requires serious vetting of that material, not a hands-off approach.
No brave new world for the Speech Warriors™. Speechies should stifle their cheers a little: the floodgates have not been opened by this ruling. Defamation is still a thing, as the Fourniers and Roger Smith know from the Warman case, and as Ezra Levant recently learned to his substantial cost once again.
Indeed, there was no precedent-setting at all. Madam Justice Polowin, when all is said and done, simply built upon current jurisprudence. No new law was created here, no bold new path was set, history was not made. Instead, the case was decided by applying existing law to the facts of this case. The blogosphere is not something separate and apart from other forms of mass communication, a space where conventional rules do not apply. They do.
Obviously I would have liked to win! But there are losses and then there are losses. And so, as the other side begins its ritual pelting with vegetables, I stand like Caesar, constant as the northern star. :)
