Warman v. Blogosphere

Ezra has posted a PDF of the statement of claim here.

Several of the defendants in this case are not only among my favorite bloggers, they're friends of mine as well. In the great Canadian blogosphere censorship debate of 2008, I've been squarely on their side. I hope Warman's case is dismissed before Ezra, Kathy et al. have to spend too much money and time fighting it.

That said, I don't think this is the same as the human-rights complaints against Levant or Maclean's, or many of the other censorship crusades Warman has taken on.

Warman has shown he has no qualms about trying to get people silenced because he finds their opinions repellent - but, at its core, this lawsuit is not about the defendants' opinions, but their specific allegations about Warman's conduct. If the allegations aren't true, Warman may indeed have a case - though he will bear the burden of showing he was defamed, and that his reputation was damaged as a result. [see update below] (I'd appreciate comments about this from lawyers who practice defamation law.)

Even "freespeechers" like myself concede that people should be allowed to take legal action for libel and slander, and one of the main arguments against human-rights tribunals is that their procedures aren't as fair as those governing civil court cases. I'm pulling for the defendants, and I'll be watching this case closely to see how it affects the practice of blogging in Canada - but I don't find this as threatening as someone trying to silence opinions.

Damian P.

Update: in the comment section, Bob Tarantino (who I really wish was still regularly blogging) weighs in:

...In a defamation action, a plaintiff need only prove the following:

(a) the statement referred to the plaintiff;

(b) the statement was published (i.e., was communicated to third parties); and

(c) the statement is defamatory - which is to say it would tend to discredit or lower the reputation of an individual in the eyes of the community; certain types of statements (e.g., of illegal activities or professional misconduct) are presumptively defamatory.

That's it. In a libel action (i.e., defamation by means of written word), the plaintiff does not need to demonstrate actual damage to his or her reputation. It is not a defence to a libel action that no damage to reputation was caused.

Broadly speaking, the only defences to a defamation action (where the plaintiff has proved their required elements), are: truth; consent (i.e., the plaintiff authorized the publication); privilege (only applicable in certain limited circumstances and certainly not in the cases we're thinking of); and "fair comment" - but fair comment, in order to be successful, must be based on an underlying truth.

Posted by damian at April 9, 2008 09:29 PM