The webmasters of an online conservative forum say they had “no choice” but to shut down their web site after an Ottawa lawyer succeeded in getting a court order banning them from publishing defamatory comments about him.
“As of today, January 23, 2014, and after 13 years online, Free Dominion is closing its doors to the public. We have been successfully censored,” reads a note on the web site signed by Mark and Connie Fournier.
After a six-year defamation case, lawyer Richard Warman won a lawsuit against the two webmasters of freedominion.ca and two other commenters on the web site for disparaging comments made against him. Warman is known for his use of the now-repealed s. 13 of the Canadian Human Rights Act to launch complaints against individuals he alleged posted hate speech online. Freedominion.ca has been critical of Warman’s efforts and published dozens of comments that called him, among other things, a “censorship champion.”
After a jury found 41 statements on the web site regarding Warman were libellous and ordered the defendants to pay $42,000 in damages, Superior Court Justice Robert Smith also ordered them to pay $85,000 in costs. In addition, he banned them from publishing, “in any form whatsoever,” any of the 41 defamatory statements.
“The continued publication of libellous material would cause irreparable harm to the plaintiff’s reputation and prohibited material has already been found to constitute libel,” wrote Smith in Warman v. Fournier on Jan. 23.
“I find that the balance of convenience favours the granting of an injunction because the terms of the proposed injunction would not prevent any of the defendants from engaging in political comment that was not defamatory, whereas the harm to Mr. Warman’s reputation would be substantial.”
Since the jury found the defendants made the comments about Warman “maliciously” and refused to apologize, “I find that the plaintiff has met his onus of showing that an injunction should issue to prevent the defendants from publishing in any manner whatsoever any statements found to be defamatory of Mr. Warman in this action as set out in jury Exhibit J,” wrote Smith.
The order came as a relief, says Warman. “It had been a legal odyssey. The defendants had engaged in a very long and protracted legal battle, including a number of motions, as Justice Smith notes. That in and of itself had driven up the cost of the litigation far out of proportion with what should have been involved in a summary proceeding matter.”
The “real message” of the case is a call for serious consideration towards resolving disputes more easily rather than launching legal warfare, Warman adds.
Meanwhile, the Fourniers are calling the decision “devastating” and “a life sentence . . . imposed for our terrible crimes of voicing our honestly held beliefs and allowing others to do the same.”
“Defamation law, in its current state, is entirely inadequate and counterproductive when applied to the Internet. Now it is being used as a tool of censorship,” they added in a statement on their web site.
Freedominion.ca has set up an Indiegogo crowdfunding profile with a goal of raising $25,000 by March for their appeal. By press time, the web site had raised $1,307.
“We have to do this appeal, and we have two other hearings coming up before the end of March. We desperately need help with our legal expenses so we can keep up all of these fights,” the Fourniers wrote.
Barbara Kulaszka, counsel for the defendants, says her clients are awaiting the final judgment in the case in order to review their options for an appeal. Defamation laws, she adds, could also benefit from a review.
“Defamation cases arising on the Internet present unique and challenging problems and it would certainly be helpful for the legislature to review the law with a view to providing statutory remedies that fit those problems,” she notes.
“There needs to be a consultation with the stakeholders, such as bloggers, forum operators, ISPs, and so on, to truly understand the problems arising in a digital environment and so the remedies.”
Toronto Internet and defamation lawyer Gil Zvulony says what stood out to him was the size of the cost award since it was higher than the amount recovered in damages.
“It goes contrary to the trend [that] you got to keep your legal costs in line and in proportion with the damages at issue,” he says.
“You’re not going to see that anywhere other than a defamation case.”
When it comes to online defamation, defendants who fight to the bitter end will usually end up paying more unless they’re absolutely certain they can prove their statements are true, according to Zvulony.
While his case against freedominion.ca has come to an end for now, Warman still has several other ongoing libel matters. In 2008, he went after Sun Media columnist Ezra Levant for publishing a post on his web site that allegedly defamed him. In the post, Levant suggested Warman “spreads hate in the name of human rights,” according to his statement of claim.
Since 2001, Warman has filed several human rights complaints related to hate speech on the Internet. But as of this June, s. 13 of the Human Rights Act, which deals with hate speech, will no longer be in effect after a private member’s bill to amend the legislation received Royal assent last year.
Still, Warman says he hasn’t given up on that portion of the legislation.
“I think the first thing to remember is that governments don’t last forever and that it was only through the sleight of hand of Conservative party members’ backbench bill that this government repealed this section,” he says.
“It was opposed by every member of the opposition except one, so I think there’s reason to hope that when there’s a new government, the section will be reinstated.”
Meanwhile, “as lawyers, one of the things we learn is we use the tools that are available to us.”