Bullying and blogging

by Werner Patels

When blogs first became popular, it did not take very long for bloggers to start using their sites for nefarious purposes, such as spreading lies about others. It may have started with some school kids who figured that using a blog for bullying mates off school property made perfect sense. But it certainly did not stop there.

Soon people who should know better would start acting like schoolyard brats slinging mud at each other. And not too long thereafter, the first few lawyers began cashing in their retainer cheques from clients seeking legal redress for having been libelled and defamed.

Nowadays, this trend has become par for the course and has even been "honoured" with its own moniker: Libel Chill. Most of these libel actions between bloggers are simply childish and have no foundation in law, but there have also been some rather serious cases too.

One such example, in Canada, is the Free Dominion site, a site that has long been known for the extremist views peddled there. The site has been the target of a few lawsuits, most notably by human rights activist Richard Warman. Instead of changing course and publishing an apology, the site owners and contributors moved it up a couple of notches and posted a long thread of online messages that ridiculed, defamed and maligned Warman for having the audacity to come after them.

Now, one of the site founders is crying foul because Warman has launched even more lawsuits, as has Warren Kinsella, if she is to be believed. Whether the extent of this latest round of blogosphere litigation is accurate or not, it was enough for US blogger Michelle Malkin to sound the alarm and warn against a massive attack on the Canadian (conservative) blogosphere.

Malkin, of course, is blowing this all out of proportion. It is doubtful that she ever actually looked at the stuff some of those bloggers have written about Warman. For if she did, she would understand why he feels the need to drag them before a judge and jury – Malkin herself would doubtless sue anyone who said just half those things about her.

The right to free speech comes with responsibility, just like driving a motor vehicle. Use your vehicle in an irresponsible fashion, and you will lose the privilege of driving it. The same is true of free speech: This right must be exercised with great care and responsibility because speech has a huge potential for fender-benders and complete write-offs.

Freedom of speech cannot be taken away from anyone, but if someone does not use sound judgment in the exercise of this right, punishment can certainly be meted out after the fact – for example, in the form of legal action and monetary awards – to teach the irresponsible perpetrator a lesson as well as to deter others from shirking their responsibilities in the context of free speech.

Most libel cases, however, are due to carelessness rather than meanspiritedness. Bloggers often express themselves on the spur of the moment and, unlike journalists who have an editor and a legal department looking over their shoulders to prevent major catastrophes, they have only their own judgment to go by before clicking on 'Publish'. Warman, Kinsella and others probably would not waste their and their lawyers' time suing over carelessness.

What does set them off, however, are acts of wilful and malicious character assassination (like those found on the Free Dominion site), as well as actions serving only the purposes of hatemongering and discrimination.

Being careful and responsible does not mean that bloggers have to be muzzled. One can express his full opinions and views without defaming others. If the contributors to Free Dominion had a problem with Warman and what he does for a living, they could have found a way to criticize him that would be considered fair comment, instead of criminal libel (because that is exactly what it was).

Perhaps more bloggers should run a quick diagnostic test on their posts before publishing them, and it is really quite simple: Just ask yourself, "Would this blog post be printed in the London Times? Would it, at least, pass muster with the editor of the Daily Mirror?" If the answer is no, it is probably a safe bet that the next button to hit is 'Delete' and not 'Publish'.

Comments

[plaasjaapie]

"Malkin, of course, is blowing this all out of proportion. It is doubtful that she ever actually looked at the stuff some of those bloggers have written about Warman. For if she did, she would understand why he feels the need to drag them before a judge and jury – Malkin herself would doubtless sue anyone who said just half those things about her."

Malkin would doubtless not. A series of court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for a public official (or other legitimate public figure) to win a libel case, the statement must have been published knowing it to be false or with reckless disregard to its truth, (also known as actual malice).

Malkin is both a public figure and a reasonably well-informed commentator who would know that her chances of having such a case heard in court, never mind winning it are zero.

That's how US libel law works.

[SUZANNE]

The lawsuit against Free Dominion is frivolous. Are you saying people should be sued for calling others names like "Nazi" and "censor".

It's positively ridiculous.

Responsibility, yes. The responsibility is to not say anything that is verifiably false. If you want to criticize a person and call them names, that should be legal. We have the right to pass judgment on people's character and behaviuor. Richard Warman did not like the fact that some posters on Free Dominion painted him in an unfavourable light, and now he's trying to sue.

That's wrong.

[Werner Patels (The Editor)]

That's convenient amnesia, because as you well know, Warman was subjected to much worse and more insidious insults and lies on the Free Dominion site, and any reasonable individual would seek redress for such treatment (including myself). In light of the insults and lies, as well as their malicious nature, I would actually file charges for criminal libel (cf. Criminal Code) and seek imprisonment of those perpetrators as well, so the makers of the site are lucky they're only dealing with Warman and not with me.

[Sounder]

"I would actually file charges for criminal libel (cf. Criminal Code) and seek imprisonment"

Bingo. There are courts for that. So, no need for HRCs hearing anything covered under criminal law whatsoever and since there are no laws against hurt feelings, on blogs or otherwise, perhaps the HRCs could do the job they were originally intended for. Now, if some blogger wants to be a jackass, have at it, the rest of us can move on. Nanny state not required, thank you very much.

[Werner Patels (The Editor)]

My understanding is that Warman et al. are filing actual lawsuits against those bloggers, and not complaints with a human rights commission at this point. So, Warman is doing exactly what you, Sounder, suggest. Hence, I don't see where the problem is and why certain people are crying bloody murder over this. Warman is only exercising his right to bring legal action for defamation (of the worst kind, if I may add).

[Sounder]

The Warman thing is much deeper than one man responding to libel or defamation on some blog. There appear to be accusations of lets say 'persons' posting hateful comments purposefully on a blog or blogs, and then using those planted comments to substantiate a claim filed with a HRC. Of course then, things really tend to get out of hand resulting in law suits, warranted or not. My point is, HRCs, as being used by some right now, are dangerous and also fly in the face of real courts and should not be used in lieu of the proper courts.

[Werner Patels (The Editor)]

I agree that HRCs should not be misused for what really should be proper lawsuits. Still, that doesn't give anyone (e.g., Free Dominion crowd) the right to commit criminal libel, which is what they, and others, have done, and as such, they deserve to be prosecuted to the fullest extent under the law.

As someone who has been maliciously libelled himself, all I can say is that I wish Warman and Kinsella all the luck in the world -- I hope they'll take every last asset of their defendants, and may that then serve as a deterrent to anyone else who thinks they can libel others without any consequences.

[Forrest Higgs]

I find it difficult to square this sudden interest in the notion of criminal defamation amongst litigants except as a direct assault on the freedom of speech by introducing litigation in an effort to silence potential critics.

I checked Wikipedia and discovered that only six cases have been filed in the past century, the most recent in 1993 and all of the cases filed had to do with the libeling of low level civil servants, not politicians or other public figures.

http://en.wikipedia.org/wiki/Defamation

Further...

"In Canada, the Law Reform Commission recommended the abolition of criminal libel in 1983. In that country, prosecutions are rare and custodial sentences are even rarer."

and...

"In sum, in most of the European, commonwealth and common law states reviewed, criminal sanctions resulting in penal sentences have not been used in defamation cases in many years. In those states, civil suits are either historically more common (as in the common law tradition) or are becoming more common (as in several European states)."

http://www.bghelsinki.org/fe/suggestions_en.html#_ednref36

I do know that in the US, Richard Warman would have no case for a civil suit, either. In the US, when you undertake to enter public life you effectively surrender your option of court redress for libels against yourself. It appears in practice in Canada the same standard applies except in where the HRC's have been trying to act as censors on behalf of protected minorities. Mr. Patels has talked about such cases in recent times.