Removing the Sting of Internet Blogging
 Although I am satisfied that the words complained are not capable of damaging the reputation of the plaintiff, I am of the view that there is another contextual factor that would further bolster this conclusion, namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet.
 Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in immediate or a relatively contemporaneous time frame.
 This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modem written form.
 I am not suggesting that defamation can never occur in a live debate. I do say however, that the live debate forum should be considered as a contextual factor to determine whether the statement is defamatory in so far as whether it is complete.
 More importantly to the issue of context, 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.
 In essence, I am suggesting that the Court, in construing alleged defamatory words in an ongoing debate, should determine whether the context of the comment from the perspective of reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.
 To some extent the Court is attempting to decide whether the debate should have gone forward, such that walking off the blogging stage, so to speak, is a form of “gotcha” contrary to the rules governing the debate.
 I realize that this sounds like a form of defence of mitigation of a defamatory comment. But I see it more as an uncompleted comment, something akin to a plaintiff arguing that he or she has been defamed by a question, when the response was what the audience was expecting.
CITATION: Baglow v. Smith, 201 1 ONSC 5131
COURT FILE NO.: 10-49803
[Bold and Underline added to above]
Read full ruling [here]
Wednesday, August 31, 2011
Saturday, August 27, 2011
Today in History - Aug. 27
On August 27, Canada's Supreme Court struck down as unconstitutional the law under which Ernst Zündel was convicted for publishing a Revisionist booklet about the Holocaust. In a four-three decision, the judges ruled that the "false news" law under which he was convicted violates the freedom-of-speech provisions of Canada's Charter of Rights, and is thus unconstitutional.
Thereby, the highest court of Canada threw out, as unconstitutional, section 181 of the Criminal Code of Canada - the ancient "False News law" under which Ernst Zündel had been tried and convicted in 1985 and 1988. By doing so, the Supreme Court of Canda substantially strengthened the Canadian Charter of Rights and Freedoms. [source]
Section 2(b) of the Charter protects the right of a minority to express its view, however unpopular it may be. All communications which convey or attempt to convey meaning are protected by s. 2(b), unless the physical form by which the communication is made (for example, a violent act) excludes protection. The content of the communication is irrelevant. The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfillment. That purpose extends to the protection of minority beliefs which the majority regards as wrong or false.
Writing for the majority, Justice Beverley McLachlin stated:
"To permit the imprisonment of people, or even the threat of imprisonment, on the ground that they have made a statement which 12 of their co-citizens deem to be false and mischievous to some undefined public interest, is to stifle a whole range of speech, some of which has long been regarded as legitimate and even beneficial to our society."
[See full SCC decision: R. v. Zundel,  2 S.C.R. 731]
In spite of the hostility and hatred which the media had shown to Zündel over the years, they grudgingly admitted in editorial after editorial across Canada that the decision was the right one and that the "false news" law had threatened the right to freedom of speech of all Canadians. La Presse in Montreal applauded the decision, the Montreal Gazette said "good riddance" to the law. The heading of the editorial in the Globe & Mail was "The right ruling on false news". (Globe & Mail, August 28, 1992) The Toronto Sun, an extremely anti-Zündel newspaper whose editor refuses to use Zündel's name in columns and editorials, nevertheless agreed with the verdict in an editorial headlined "Free to speak" and stated that "the cause of freedom of expression is too important to be sacrificed on any altar of anger" at Zündel. (Toronto Sun, Aug. 28, 1992) The Toronto Star editorialized that "this mature verdict upholds free expression..." (Toronto Star, August 28, 1992) The Calgary Herald editorial agreed that "to protect freedom of speech for all citizens, society must tolerate even the most obnoxious opinions of a minority." (Calgary Herald, Aug. 28, 1992) [Source]
For more information on the 1992 Supreme Court victory for freedom of speech see:
- Zundelsite - Canada Supreme Court Excerpt
- Zundelsite - Zundel Chronology - Part 7 of 13
- Supreme Court of Canada - Decisions - R. v. Zundel
- Or check results in Google
Thursday, August 18, 2011
FreeDominion has an interesting posting on a letter that one of the FD readers received from Rob Nicholson, the Justice Minister.
Here is what Nicholson wrote in response to a letter complaining about censorship and thought control on the internet.
The first part was in reference to my complaint of inaction on Section 13. The 2nd part responds to Bill C51
Speaking of the censorship bill C-51, here is an article from this weeks Toronto Sun.
Bill C-51 misses mark on hate crimesBy Alan Shanoff ,Toronto Sun
Is the federal government proposing to make hyperlinking a crime?
That seems to be the case when you read Bill C-51, a federal bill called Investigative Powers for the 21st Century Act.
The stated purpose of Bill C-51 is the modernization of certain criminal offences. One of the offences to be modernized is the offence of public promotion of hatred against an identifiable group. I wasn’t aware of the pressing need to modernize this rarely prosecuted offence, but I may be wrong.
Bill C-51’s amendment to modernize the promotion of hatred offence would see the definition of “communication” revised from the currently vague “includes communication by telephone, broadcasting or other audible or visible means” to the very broad “making available” of a statement.
The new and improved modernized definition makes it crystal clear that hyperlinking is a form of communication. After all, what better way to make something available than providing a link to it, a link you can access with the click of a mouse?
So with this so-called attempt at modernization, search engines like Google will be at risk of prosecution for making available all sorts of subjectively hateful sites currently available to anybody in Canada, as would be anybody who provides a link to them.
Yes, many of these sites contain hurtful language, but should anybody linking to such sites for any reason be at risk of prosecution?
Placing people at risk of prosecution for linking to sites that may be deemed to promote hatred against an identifiable group encourages censorship, is anti-democratic and will create more conspiracy theory adherents.
We already have enough people who think certain groups control the media and government. Why feed into their absurd notions by expanding the offence of public incitement of hatred?
Instead, I’d advocate getting rid of this offence in its entirety and focusing attention on the real form of hate speech we ought to be policing: Speech that threatens, advocates or attempts to justify violence against members of identifiable groups.
That’s what law professor Richard Moon advocated in his 2008 report on the regulation of hate speech on the Internet, where he also expressed the sensible view, “religious beliefs or values cannot be insulated from debate and criticism, even that which is harsh and uncivil. The criticism of religious belief cannot be restricted without undermining our commitment to freedom of expression.”
Yes, hate speech can be harmful, but who gets to make the decision on what is and isn’t hurtful? It’s too subjective.
Threatening, advocating or justifying violence, however, presents a much easier line to draw. So let’s beef up that offence and its prosecution, but at the same time let’s rescind the much more vague and subjective promotion of hatred offence.
Instead, Bill C-51 would also “modernize” the hate speech offence by expanding the list of identifiable groups by including people distinguished by “national origin” to the current identifiers of colour, race, religion, ethnic origin or sexual orientation.
I may be paranoid, but I can already see the bigoted outcry claiming this is but a means of making criticism of Israel illegal. Yes, there is a gap in the current definition, but is there a pressing need to fill the gap right now? Is there a need to protect people from hurtful speech based on their country of origin, as opposed to the other identifiers?
Of course, freedom of expression comes with limits, but the extent of the limits determines what sort of country we live in.
The modernization in Bill C-51 seems to be a backward step.
SEE THE ENTIRE ARTICLE AT: http://www.torontosun.com/2011/08/12/bill-c-51-misses-mark-on-hate-crimes
Tuesday, August 16, 2011
H/B: BCF http://blazingcatfur.blogspot.com/2011/08/ezra-levant-talks-to-chris-schafer-on.html