But one defendant, personal injury lawyer Russell Howe, claims AdviceScene got its facts wrong in its reply to the lawyers’ statements of defence and that only one defendant was a moderator on the now-defunct Lawbuzz web site.
In the libel suit, AdviceScene is seeking $500,000 in damages for statements made by the four defendant lawyers under pseudonyms on Lawbuzz in March 2009.
Seven statements, all of which the defendants now admit to making in their own court filings, were listed in the original statement of claim lodged in November. AdviceScene alleges the comments, which in some cases questioned the identity of a judge who contributes to the site, cast doubt on its legitimacy. None of the allegations have been proven in court.
Lawbuzz agreed to provide the e-mail and IP addresses of the defendants as part of a no-cost settlement in January (see "Online comments spark messy litigation"). AdviceScene went on to name all the defendants in an amended statement of claim last month (see "Lawbuzz suit ups ante, names three more lawyers").
“All four of the defendants, including the defendant Howe, were forum moderators and had the heightened responsibility to ensure the exchange of comments by various anonymous commentators were not defamatory.
Ironically, the defendant Howe not only failed to moderate the deluge of damaging and untrue statements but actively incited the co-defendant moderators to disparage the plaintiffs’ business model and professional obligations under the various provincial law societies’ rules of professional conduct.”
Virtually identical statements close out the replies to defendants Tycho Manson and Kevin Preston, but Howe claims only Manson acted as a moderator.
“He [AdviceScene lawyer Antonin Pribetic] obviously decided to take the shotgun approach because I was never a moderator,” Howe tells Law Times. “It’s just dead wrong.
Pribetic declined to comment on the case.
In the meantime, Manson’s lawyer, Brian Rogers, confirms his client had been a moderator but calls the issue a “red herring.”
“The idea that someone who has the title of moderator has some different liability from the strict liability imposed I think is very wrong-headed and not in accordance with defamation law,” he says.
The fourth defendant, Vancouver lawyer Jenny Rutherford, filed her defence on June 11. She has not yet been served with a reply, but her lawyer Roger McConchie repeated the denial.
“Jenny Rutherford was not, not, not a forum moderator of the Lawbuzz website at any time,” he said in an e-mail to Law Times. “If the plaintiff intended to allege Ms. Rutherford was a forum moderator, it should have done so in the statement of claim, yet it did not. If the plaintiff had done so, Ms. Rutherford would have unequivocally denied that completely unfounded allegation in her statement of defence.”
Rutherford’s defence says the AdviceScene suit constitutes an abuse of process that she alleges was “commenced with the vexatious attempt” to deter her from expressing her opinions.
“This is a strategic lawsuit designed solely to interfere with Ms. Rutherford’s right to freedom of expression,” the defence statement claims.
Preston, meanwhile, declined to comment on the matter.
Manson and Rutherford both draw attention to the large time gap between posting the comments and the initiation of the lawsuit. They also claim AdviceScene founder Nancy Kinney could have contacted them at any time through Lawbuzz’ private messaging system to ask for an apology or express her concerns.
“If AdviceScene suffered any damages, which is not admitted but expressly denied, they are attributable to the acts and omissions of AdviceScene,” Rutherford’s defence alleges.
Instead, she goes on to claim Kinney “expressed gratitude” for her two allegedly defamatory posts and that the AdviceScene founder “wished her good luck in her legal career” in a general reply on the web site.
In his defence, Manson points to the fact that Kinney initiated the thread containing the comments. In a post introducing AdviceScene, Kinney also started a poll asking posters to express their thoughts about that type of site in Canada, Manson alleges.
“Kinney’s comments and her poll invited Lawbuzz users to show their opinions about the AdviceScene site,” according to Manson’s defence, which goes on to claim Kinney “gave every indication to Manson and others that she was pleased with the discussion. . . . AdviceScene therefore consented to the publication of the words complained of.”
But in its reply to Manson, AdviceScene denies his claim.
“The comments posted by Nancy Kinney on behalf of AdviceScene were neither an open invitation to disparage the plaintiff’s business reputation nor were they carte blanche to incite a deluge of defamatory comments via a bandwagon effect.”