The end of Free Dominion

A conservative web forum has been shut down after decisively losing a defamation action brought by one-man online-decency activist Richard Warman:

A jury concluded that Warman was maliciously defamed by four commentators on Free Dominion, a website that bills itself as “the voice of principled conservatism.”

Warman has been awarded more than $127,000 in general damages, aggravated damages, punitive damages and court costs because of 41 defamatory statements published on the conservative website in 2007.

Warman rose to prominence during the past decade by using the Canadian Human Rights Act to shut down the websites of people spreading hate speech; it made him the target of free speech advocates in the conservative blogosphere, and on websites such as Free Dominion.

In a recently released decision, Ontario Superior Court Justice Robert Smith granted Warman a permanent injunction that prohibits Free Dominion from ever repeating “in any manner whatsoever” any of the 41 defamations.

The website’s operators, Connie and Mark Fournier, of Kingston, this week shut down freedominion.ca, saying they could not control what comments other people posted.

[…]

The Warman case is among the first to address at trial what constitutes defamation in the caustic political blogosphere. It adds to case law that suggests the Internet does not shield anonymous posters from legal action if they wrongfully attack someone’s reputation.

On his website, Warman said the case offers lessons for anyone involved in an Internet blog or forum. Chief among them, he said, is the idea that “If you make a mistake, admit it, repair the harm, and move on.”

Connie Fournier, however, said that if the case stands on appeal it will impair the once vibrant Canadian blogosphere.

 

The Fourniers plan to appeal the ruling – here’s their IndieGoGo page, seeking donations – and I wish them well.  As a blogger myself – one who often disagrees with Richard Warman, no less, which makes me a potential target – I have a vested interest in making sure the test for libel, when applied to the internet, is defined narrowly.

That said, this isn’t a traditional “freedom of expression” case in the traditional sense.  The government didn’t shut down Free Dominion – the Fourniers did it themselves, after losing a defamation case.  I’m about as militantly pro-free-speech as anyone, but I acknowledge that defamation of a person’s character remains actionable in court.

Whether one should launch a lawsuit against a relatively obscure website is open for debate, of course.  (Google “Streisand effect.”)  But Warman did ask Free Dominion to remove the defamatory posts, and the Fourniers didn’t do so.  So he took them to court – not a human rights tribunal, but court – and won.  The Fourniers could have defused the situation early on, but they didn’t.

In other words, this case is much more complex than the people shouting “freedom of expression!” and “censorship!” would have you believe.  That said, I think the people cheering for Warman should watch their back.  Before long, one of them could find him- or herself in the Fourniers’ position.

Whoever wins, we lose

The good news is, Donald Trump or Bill Maher will lose this case. The bad news is, Donald Trump or Bill Maher will win this case:

Donald Trump is filing a lawsuit against Bill Maher for failing to live up to an “unconditional offer” made on NBC’s Tonight Show to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he’s not “spawn of his mother having sex with orangutan.”

We’ll chip in $500 to the charity of Trump’s choice if he actually prevails in court over Maher and collects $5 million.

“Trump would have to prove that Maher’s words and conduct demonstrated, objectively, that he intended to be bound by his statement, and that he was not merely making a joke,” says Dori Ann Hanswirth. “Given the outrageousness of Maher’s statement, the amount of money involved and the fact that his statement was made on a comedy TV show, it seems that Trump has an uphill battle here.”

[…]

perhaps the case that might most demonstrate why Trump is likely to lose is the case ofthe Pepsi Points.

In 1999, John Leonard sued PepsiCo., attempting to get the company to hand over an AV-8 Harrier II jump jet. The advertised “offer” came in the form of a television commercial that showed the big prize for 7 million Pepsi points. Leonard had 15 points and attempted to send Pepsi a certified check for $700,000 — 10 cents a point, per contest rules — to cover the rest.

Pepsi successfully argued that its advertisement was intended to be humorous.

“Plaintiff’s insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny,” wrote a judge. “Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, ‘Humor can be dissected, as a frog can, but the thing dies in the process.’ ”

Ultimately, Leonard was deemed to be a loser.

As the judge wrote: “A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact. … The Court rejects plaintiff’s argument that the commercial was not clearly in jest.”