FIGHT FOR INTERNET SPEECH RATCHETS UP

by BOB UNRUH

The popularity of new homes of only 500 square feet, 500-million-year-old bacteria and Barack Obama telling those with successful businesses, “You didn’t build that.”

Those are just a few among the topics of discussion now at Free Dominion, a Canadian version of Free Republic in the U.S. where Internet users talk about, well, just about everything.

Now website organizers are trying to raise a few thousand dollars to pursue arguments in a court case that would solidify the foundation for Internet free speech in Canada, a case they won at the trial court level but saw reversed on appeal because the judges wanted to address “a number of public interest and legal issues.”

The operators of the Free Dominion website are asking supporters for help in raising an estimated $14,000 they need right away for the fight.

“We need the support of the wider Internet community to continue our journey toward justice in order to maintain the principles of freedom of speech, thought and association for us all on the Internet,” site operators Mark and Connie Fournier have written in their appeal.

“The Ontario Court of Appeals asked us to bring expert witnesses to help them understand how defamation law should be applied to our Internet. This is an incredible opportunity for us to help shape the law. We have to ensure that our freedoms of association, thought, belief, opinion and free speech are properly protected,” they wrote.

“We need to raise $14,000 immediately to pay court costs and we will need to raise more funds for experts and for legal expenses for the trial. … Our track record shows that we will stand up for our Internet, we will not quit, and we can win! Through no choice of our own, we have been thrust into the front lines of this battle. We hope you will stand with us.”

The track record is important to understand, Connie Fournier told WND. The site has been around for more than a decade, but in the last few years has been targeted under Canada’s various laws that forbid expressing opinions about another individual or group.

Think of the U.S. “hate crimes” law, which enhances criminal penalties based on the thoughts of a perpetrator, on steroids.

But the site already has had success.

“Our legal cases have, so far, resulted in some excellent case law that protects Internet users,” the Fourniers reported.

Among the precedents that have been set are that plaintiffs “must now show that they have a real case of defamation, and a judge must consider free speech factors before the private information of anonymous posters can be demanded from website operators.”

Also, the fights have resulted in a determination that “excerpts from a copyrighted article are not considered a copyright violation.”

Thirdly, “forums” now can take advantage of a “news reporting” exemption for quoting from copyright works, and links to copyrighted material are not considered to be violations.

Lastly, and of concern in the case at hand, is that “Internet flame wars should not result in a successful defamation complaint when one flamer chooses to leave the online debate and file a lawsuit. This is vitally important to website operators who allow comments because, in Canada, they are liable for what others post on their sites.”

In the controversy, the couple was accused of defamation because of what a forum participant posted on their website, which some time ago was moved from Canada to a foreign ownership.

The district court judge ruled in a case brought by blogger John Baglow over comments by Roger Smith in a debate between the two that the case be dismissed.

Then the Ontario Court of Appeals got involved, deciding to hear the case.

“The appeals court did not overturn Justice Annis’ dismissal because he erred in finding that the comment was not defamatory, but because the case raised a number of political interest and legal issues that the higher court felt should be dealt with,” the Fourniers reported.

The site operators said it’s a good opportunity to establish ground rules for the ideas of free speech and freedom to comment.

“Oddly, although going through a full trial will be an expensive and time consuming process for us, we are pleased with their finding. We see it as a golden opportunity to make important fundamental law that will protect Internet users across Canada, and beyond our borders.”

Mark Fournier, in a statement on the website, explained that the appeals court has instructed parties to return to Superior Court with expert witnesses who can better inform the court of the many new issues related to the situation.

“Traditional defamation law is badly in need of an update in its application to the Internet,” Mark Fournier wrote.

“Unfortunately, and for reasons we do not understand, the high court ordered us to pay John Baglow $14,000 in costs. It is difficult because the appeals court wants us to help them examine these important issues, yet they placed a financial burden onus that could potentially knock us out of the game. If this happens it will be bad for Canadian Internet users.

“We will remain in an era where Internet arguments will be settled by SLAPP suits and lawfare, and, to us, that is completely unacceptable.”

Connie Fournier told WND that the issue is that in the United States, there is a different standard that what is used in Canada, where the law is based on British common law.

She said there are fewer protections for websites whose managers allow comments or posting.

“What’s happening is there’s a chill for website owners. When they get a complaint, they either have to take it down right away or face paying tens of thousands of dollars. There’s a … chill because of that.”

She said what the court has proposed – a review of the requirements and standards – is a good idea.

Without such review, Canada could end up being a shoppers’ forum for lawsuits over Internet statements, which could even threaten to reach across international boundaries and snag in Canadian courts American or other website operators.

She noted a Canadian Supreme Court decision just months ago now allows lawsuits in Canada based on the “connection” to Canada, such as if a person has business connections to Canada, lives there or such.

She said Free Dominion actually was transferred to a Panamanian corporate ownership and hosting service because of the threat to speech in Canada right now.

Several of the current disputes arose in a complaint that targeted a 2007 statement regarding radical Islam.

The idea of censoring a forum site, except for the truly abominable statements, is not something they would like to pursue, she said.

“We want people to do their own fact checking, take everything they read … and really think about it,” she said.

The Fourniers also have posted online a list of the legal attacks they’ve endured.

A chronoligical list of legal incidents.

July 18, 2007 – Human Rights attack on Free Dominion Link 
November 2007 – Warman’s 1st lawsuit against FD, Connie, Mark and 8 John Does. Link 
February 20, 2008 – Warman sues Connie, Mark and Free Dominion Link 
February 23, 2008 – Kinsella and Warman sue Connie, Mark and Free Dominion Link 
April 9, 2008 – Warman sues the Conservative Blogosphere Link 
December 2008 – A heavily redacted file gained from the CHRC shows FD is named in a second complaint. Link 
March 25 2009 – Judge orders FD to turn over 8 John Does data and pay $5,000.00 in costs to plaintiff. Link 
April 8, 2010 – An appeal of the March 25, 2009 FD/John Does ruling Link 
December 8 2010 – Connie’s account of the John Doe Motion hearing Link 
April 8 2011 – Warman sues FD for copyright violation. Link 
May 16, 2011 – Baglow sues FD Link 
August 26, 2011 – Ontario Superior Court decision in the John Doe cases Link 
June 14, 2012 – Ontario Court of Appeals ruling in Baglow v FD Link

A chronoligical list of Free Dominion Legal Fund Raisers

May 2008 / $3,500 Link
July 2008 / $3,400 Link
December 2008 / $1,000 Link
March 2009 / $3,000 Link
May 2009 / $3,800 Link
October 2009 / $2,500 Link
July 2010 / $2,000 Link
July 2011 / $2,000 Link
September 2011 / $12,000 Link
December 2011 / $3000.00 Link