Saturday, May 17, 2008

My take on the Warman vs. National Post, Small Dead Animals, etc.

First, a couple of things I'd like to get out of the way. I don't believe Human Rights Commissions are the places to deal with libel, such as the recent cartoon in the Halifax Herald that tags an identifiable person as a terrorist. Nor should they regulate "hate speech" in the media.
(Though if I was defamed in a cartoon and had access to the Human Rights system, I'd use it. Libel actions are priced out of reach of ordinary people, while the Human Rights system is free for plaintiffs. Can you blame anyone for using the system when it's right there, waiting for them?)
I'm also deeply distressed by the apparent use of entrapment techniques of staff of the Canadian Human Rights Commission and the possibility they engaged in the stupid and illegal practice of using a private citizen's Internet connection to do so. While Richard Warman did not engage in these tactics, it's pretty clear others did. I'm eager to see what the Privacy Commissioner has to see about the complaint filed by the woman whose connection was hijacked for the posting of entrapment material on hate sites.)
But I'm afraid Richard Warman has the National Post and several bloggers dead to rights. If you print anything about anyone, especially something negative, you must be able to prove what you are saying. My old sparring partner Bucketsofgrewal, who is very smart, has blown big holes in the Internet speculation that Richard Warman engaged in disreputable behaviour on the Internet. In fact, Buckets' research actually goes very far the other way. Warman's computer has considerable dissimilarity with the one that was used to post offensive material about Senator Anne Cools on a fascist web site.
Warman has sued the National Post and several conservative bloggers for the comparatively nominal amount of $50,000. I know to most of us and to the bloggers $50K is a lot of money. To a newspaper, it's an amount that can easily be justified as "screw off" or settlement money. It's much cheaper than litigation, especially when your case is as weak as the National Post's and its editorial page editor Jonathan Kay. I'm sure their libel insurers will see it that way.
Kay did everything he could to drum up data for a case against Warman while studiously avoiding anything that might have disproved his (and the bloggers) theory. Why do I think that? Because he didn't do one of the most basic acts in fair journalism: seek a response from Warman.
The Post's defence, posted on Bucket's blog, argues Kay was simply in error. Carelessness does not mitigate damages. In fact, it works the other way. Pleading stupid is a very poor move in libel law. The Teskey, Heacock and Ferguson vs. Canadian Newspapers Ltd and Midland Free Press case that went to the Ontario Court of Appeal in the late 1990s dealt with the issue of retractions. They are somewhat useful, but they have to be complete and heartfelt. (The newspaper in the Teskey case had used weasel words in its retraction. The suit cost over $2 million and could have been settled early in the game with a $3000 donation to charity). This is where the Post has a problem. How can you have a complete and heartfelt retraction when the Post continues to make common cause with people who have not retracted the allegation and, from what I've seen at Small Dead Animals, continue to make them? Steyn, too, has been on the road making the same claims about Warman. Recently, he and Mike Duffy talked at length on TV about this stuff. I was shocked to see Duffy adopting Steyn's cause and leaving himself open to be sued.
I do wonder why Warman did not sue. As I've said, this is not a simple case and there are many hidden agendas and varying shades of grey.
I think a court would look at the suit as a whole: several defendants who show blatant malice and refuse to seriously consider a retraction and a newspaper that carelessly adopted their cause with the most cursory "investigation", then tried to escape from the situation with a pro-forma retraction. The new "honest mistake" rule from the recent Ottawa Citizen case at the Ontario Court of Appeal won't wash, because the "honest" aspect has to be clean as a hound's tooth. This is not an honest mistake made by "objective" journalists who were somehow misled in the course of a normal news-gathering operation. This was the Post chiming in during a malice-driven blog attack on Richard Warman's personal and professional reputation. I think Kay did it to get right-wing cred. The telling point, the really fatal one to the Post's case, is Kay's recklessness and callous disregard for Warman's reputation. And it certainly won't help the Post's case that Kay's a lawyer. He should have known the law and he certainly should have understood the situation he was involved in.
The Post also claims the damage, if any, was temporary, since the Post retracted the article. This defence relies on the assumption that people believe retractions. They don't. Most educated people know that news retractions are usually made simply to save the cost of litigation. As well, the Ontario courts have ruled that there's nothing "temporary" on the Internet. If you want to find the Post's allegations against Warman, they're still on the Internet. They always will be, for the whole world to see. Damage to reputation committed on the Interent, with all of the caching systems available, is far more permanent than damage on TV, in newspapers and magazines. TV signals tend to go into the ether. Newspapers go to recycling. But the Warman posts will be in Google's cache system, available to anyone with any computer skills, anywhere in the world, for the long foreseeable future.
The downside for the people who would like to see Kay and the Post fry is that the Post has libel insurance, so it won't directly cost the apper much money when it throws in the towel. I've recently seen some cases settled by insurance companies for around the figure that Warman wants. I think he should have asked for more. (My wife learned a little saying at law school: a settlement costs a car, litigation costs a house). He may quite easily end up with his $50K and an apology from the Post. It will be much more interesting to see what happens with the bloggers.
The lesson of this is to be careful. If you are going to try to take down a lawyer, you better have your facts straight. You better look at every "fact" the same way a judge would. You better have good documents and witnesses who are solid citizens. And the defendants in this lawsuit aren't even close.


Anonymous said...

Isn't the judicial process, in terms of the discovery , simplifed and less expensive when you sue someone for $50,000 or less?

Surprised that he hasn't sued Steyn? What are the rules for suing non-residents?
Glad someone remembers the Teskey case/

Ottawa Watch said...

Canadian Lawyer's brilliant editor Mike Fitz-James called it The Case That Wouldn't die. Years of discovery, a three-week trial, two appeals, then litigation over the liability of the libel insurer when the defendants (Thomson Newspapers) act with utter stupidity both in their action -- libelling a law firm -- and in their subsequent decisions not to settle.
Back in the 1980s, people saw this is a freedom of expression case: that the twon crank could say anything he wanted about these lawyers if he bought an ad. The newspaper's editor and ad manager took the position it was the crank's paid-for space, so it wasn't their problem. Then, when the lawyers got mad, they published a retraction that left just the faintest of doubt ... "we have investigated and found that Teskey, Heacock and Ferguson were not involved in a conflict of interest..." To most of us, it sounds pretty complete, and I've seen similar wording since, but the judge believed there is just slightest of nuances that there's something there. I wouldn't agree. I think it strengthened the retraction, but there ya go. The system is definitely stacked against the plaintiff. I'd love to change the system, but as of May, 2008, that's where it stands. Is it fair? Not at all. But you need to know the rules and abide by them. And if you don't like them, the change has to come through the legislatures.
As I said in the post, the bloggers and the newspapers don't have a prayer. You've got to pick your battles and make sure you can win them. I've learned that the hard way.

bigcitylib said...

Just to add to what I have written above, the "evidence" that CHRC employees hacked the wifi of a private citizen came from the same source as the evidence re the Cools Post.

Further, it is damn near impossible to hack wifi from the distance in question (1,100 - 1,200 feet), and it is totally unecessary given the part of Ottawa you are in. Several starbucks, and one other indy coffee shop, are around that offers wifi.

Clive said...

Just to set the record straight, BCL is lying when he says the wi-fi accusations came from the same source. In fact, they came from Bell Canada. Although having once been a Sympatico customer it is tempting to believe that Bell doesn't know what happens on its own network, one would hope that when testifying under oath they would. Steacy admitted being Jadewarr, Jadewarr posted the material from a Bell IP belonging to the innocent third party. That one can't be disproved, any more than the Cools post can be proven to have originated with Warman.

Werner Patels said...

The attacks on Warman by Levant, Kay and the bloggers were extremely shameful -- and libellous.

In fact, if this were me, I would have brought charges for criminal libel (against the bloggers) under the relevant sections of our Criminal Code (punishable by up to 5 years in jail!!!!!).

I have been saying this from day one: criticize the HRC if you don't like them; say how you would do it differently and/or better; but you cannot start a hate campaign of character assassination against an individual, such as Warman in this case.

bigcitylib said...

Just to set the record straight, the guy from Bell provided a real address associated with an IP address that Mark Lemire brought to him, that the guy that runs Stormfront gave to Lemire.

bigcitylib said...

And, just to set it even straighter, Bell Canada did not make the accusation that a legally blind CHRC employee set up shop in Nelly Hechme's lobby or, alternatively, that the CHRC used hitherto unknown technology to access a wifi network 1,200 feet away through a bunch of downtown hirises with computers that were not wifi enabled. These theories appeared on Marc Lemire's Freedomsite on Thurs., March 27th.

Clive said...

So, BCL, your theory is that the guys at Stormfront, rather than provide Bell with the actual IP address used by Jadewarr from their server logs, invented one that they (by some devious means) knew would have been assigned to someone geographically close to the CHRC building, at exactly the time the material was posted, so they could then level this accusation? How do you think they knew what address to invent?

I'm with you on the Cools posting; there's definitely no proof that Warman did that, but your explanation of the Hechme IP being provided somehow maliciously by Lemire seems to me to be highly implausible.

bigcitylib said...

My theory is that the guys from Stormfront and Freedomsite are serial bunglers. Who knows where they got the IP address?

And that what they are accusing the CHRC of doing is 1) basically impossible, 2) unecessary, given that if the CHRC ops had wanted to get onto Stormfront anonymously it would have been FAR easier to do it from a local coffee shop. Or by walking out onto the street in front of their headquarters. Lemire himself produced a screenshot of all the unsecured wifi networks available in front of that location. Of course that doesn't explain how they would have done it with laptops that were not wifi enabled. But hey, we're in truther territory already so why quibble?

Clive said...
This comment has been removed by the author.
Clive said...

Impossible? Far from it: Easily done, and the instructions for several popular brands can be found online, e.g.

Necessary? Yes, as most public hotspots require payment via credit card, or cell account. Hardly anonymous.

bigcitylib said...


1) The impossible (or nearly) part of the task is doing this all from 1,100-1,200 feet away. Through a block of office buildings. With a laptop that was not wifi enabled. Or are you suggesting that Dean Steacey, who is legally blind, camped up the the lobby of Nelly Hechme's condo?

2) The screen shot Lemire provides shows about 20-30 wifi networks outside of CHRC headquarters. Furthermore, I can only speak from my TO experience but there are any number of places where no payment, password, nor doodly is required. I have been told by a systems guy from Ottawa that he knows of several such places around the CHRC building. I cannot confirm that bit, however.