RSS FeedArnie Lemaire is Behind Blazing Cat Fur?
The issue of blogger anonymity is a contentious one that is being closely watched by members of the bar. Canada does have a more qualified understanding of the freedom of speech, and after the emergence of the responsible journalism defence in Quan v. Cusson and Grant v. Torstar Corp we’re likely to to see the courts enter this foray as well.
So what happens when a notoriously anonymous and irresponsible blogger is identified? We may just find out with the recent revelation that the author behind Blazing Cat Fur is allegedly an individual named Arnie Lemaire.
The site is a case study of exactly what not to do with online political commentary, with plenty of potentially libelous statements and speculative conclusions. In fact the site seems to specifically seek to target individuals and comment on them personally.
The Limitations Act states,
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
5. (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[emphasis added]
Anonymity in this context is frequently used to shield the blogger from potential litigation by avoiding identification of authorship. Although there are mechanisms to identify authorship, they can be tricky and are still developing.
With the revelation of authorship behind these statements, a new limitations period may have started for statements made on the site if relying on 5.(1)(b). They may still have to rebut the presumption in 5(2),
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[emphasis added]
Depending on the cause of action, the appropriate limitation might be found under the Libel and Slander Act,
Limitation of action
6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.
[emphasis added]
Alternatively, a plaintiff could try to rely on the special circumstances indicated in Mazzuca v. Silvercreek Pharmacy Ltd.,
[32] Thus, as a general rule, amendments to pleadings which had the effect of relieving against a limitation period, were not allowed. This did not mean, however, that in every case such amendments were to be denied.
[33] The exception to the general rule, which contemplated the allowing of an amendment in a proper case notwithstanding the intervention of a limitation period, was expressly recognized by the Supreme Court of Canada in Basarsky v. Quinlan, supra, in which Hall J. observed at 385:
“The adjective ‘peculiar’ in the context of Lord Esher, M.R.’s judgment and at the date thereof may be equated with ‘special’ in current usage”.
This decision, and the undertaking of a special circumstances analysis, have been followed in numerous subsequent cases. In some instances this has occurred in the context of the operation of particular limitation periods where special considerations may apply, or legislative regimes which expressly provide for the extension of time periods established by statute. In other cases, the analysis of special circumstances has been undertaken when a change of parties is sought, as a discretionary matter, under the rules.
So will this unveiling lead to any litigation? We’ll have to see, but it will be interesting to find out.
Arnie Lemaire of Blazing Cat Fur with his camera. He likes to take photos of random people and place them on his site, so here is the favour returned.
Uttering threats
Disclaimer: The text below contains only my understanding of the applicable law. It has nothing whatsoever to do with your particular situation. Do not assume you can make any decisions based on this text. I do not intend this text to apply to anyone’s situation. This text is not legal advice. The purpose of this text is to encourage debate and create awareness of certain criminal offences. Please consult a lawyer if you need legal advice or help with your particular situation.
Watch your mouth. Your mom or buddy told you this in high school when you blurted out something stupid or offensive. But it’s also what the law tells you now with all its authority and with all its might. Freedom of speech is not absolute, and for some speech, the law will put you in jail. It is a crime, for example, to make death threats or to promise to injure someone or to burn someone’s house. In 2009, at least two high-profile stories of prosecution for uttering threats hit the papers. The father of baby Kaylee was charged with threatening death and causing damage in September, and the sister of Toronto’s deputy mayor was charged with threatening death in April. The potential punishment is up to five years in prison. And if you are not a Canadian citizen, they can kick you out of the country. The law may come crushing down on you if you “utter threats,” so how does it work, exactly?
Section 264.1 of the Criminal Code defines the crime and the punishment for uttering threats. If you threaten anyone with death or “bodily harm,” you can get up to five years in prison. If you threaten to harm anyone’s property or animal, you can get up to two years in prison. The courts have said that you don’t need to be violent, to slap anybody on the face, to step on a dog’s tail, or to punch anybody’s car to commit this crime. Words are enough. Of course, if you jokingly yell “I’ll kill you!” and chase after your best friend who kicked you during a ball game, the law is not interested. You must intend to intimidate when you make your threats. You must want the other person to take your words seriously. But the victim does not need to understand or even know about the threat. All the Crown must prove when they haul you to court is that you “uttered the threat.” Even if you threatened not a specific person but a member of a race or a religion or some other group of people, you can be convicted.
A special warning to those who are not Canadian citizens. The government can deport you for certain crimes, and the law may ignore how long you lived in this country. They can kick you out even if you are a permanent resident and you lived here for 50 years. Uttering threats is one such crime. Under section 36(2) of the Immigration and Refugee Protection Act, the government can tell you to leave Canada, if you are a permanent resident and you were sentenced for any crime to more than six months of imprisonment. Uttering threats fits the bill because you can go to prison for up to five years. If you are not a permanent resident but just a visitor, a foreign student or worker, etc., it’s even easier for the government to expel you. Even if you don’t go to jail for uttering threats, the conviction alone is enough for deportation. Words can cost you dearly.
Most people are not criminals, and you can even say that it’s not that easy to commit most crimes. But some crimes are crimes of mere words with severe punishment in prison. There is no freedom of speech for these words. If you tell someone that you’ll kill them, or that you’ll cut their balls off, or that you’ll burn their house, or that you’ll kill their parrot, or that you’ll stab their tires, you can go to prison. If you are not a Canadian citizen, they can also throw you out of Canada. So know the law and watch your mouth.
Reputation Management Law is the Next Big Thing
Tony Wilson, of Boughton in Vancouver, wrote in this week’s issue of Lawyer’s Weekly,
Reputation matters… But it’s not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see.
Like many professionals, physicians in Canada operate by word-of-mouth referrals, largely based on the personal experiences of patients or other referring physicians. RateMDs has become an increasingly popular site for patients to share experiences about their physician.
It’s become enough of a concern to physicians that Sam Solomon provides some advice to MDs in this month’s edition of Parkhurst Exchange:
- Ask for the review to be taken down
- The Medical Justice approach of providing patients a contract allowing them to only post reviews on sites that confirm poster identity
- Sue
- Encourage patients to post positive reviews
- Use the criticism as an opportunity to improve practice
It’s unclear whether option 2) would hold up in court, and 1) is rarely effective, either due to confidentiality issues, site administrative policies, or simple refusal.
RateMDs was founded by the same people who made RateMyProfessors.com, RateMyTeachers.com, and the Ratingz.net network of rating sites that includes LawyerRatingz.com. It seems quite a few of my law professors are up there. A quick survey reveals that many Canadian attorneys have been rated, and most not favourably.
Assuming that the only people to ever review professionals are clients who have utilized their services is far too presumptuous. Competitors, business rivals, people with personal vendettas, and even opposing parties in lawsuits can pose as a client in an attempt to portray the person in a negative light.
It can and has happened. Solomon points to the case of Dr. Mohamed Foda of Leduc, Alberta, who forced RateMDs to provide information about a negative poster through the California Northern District Court in Foda et al v. RateMDs, Inc. On April 28, 2008, the Edmunton Sun covered the story,
An Edmonton urologist has launched a $12-million defamation lawsuit against two unidentified people for allegedly posting bogus poor ratings about him on the California Internet site RateMDs.com. In a March 31 statement of claim, Dr. Mohamed Foda alleges the postings were not made by actual patients of his, but by someone who has a “malicious” motive to harm his medical business, and states he will seek to identify the unknown defendants by searching for their computer identifying information. Foda claims the defamatory comments have caused irreparable harm to his reputation and medical practice and caused him emotional distress and anxiety.
The posts in question stated:
“This doctor prescribed me an antibiotic that causes birth defects after I clearly told him I was 4 months pregnant!! Apparently he made a ‘mistake.’” — Posted on RateMDs.com on October 1, 2007
“I found Dr Foda to ignore problems until drastic measures were required. Had to call numerous times to get an appointment. Felt that Dr Foda did not do required follow up in a timely manner. Did not inform patients of what he did in the OR [such as] remove tumours. Would have died if not for another [doctor].” — Posted on RateMDs.com on May 26, 2007
Administrator of RateMDs, John Swapceinski, says that the site gets letters from lawyers once a month. Not surprisingly, they do not comply with the requests. The site does serve an important public function for consumers of healthcare. But Swapceinski also said that Dr. Foda’s suit is the first time a lawyer has actually followed through and sued the site, and he indicated he would cooperate with a subpoena to release the information if one was provided.
In light of the Cohen v. Google and York University v. Bell Canada Enterprises cases I’ve covered previously, it’s probably no great surprise that the court did reveal the identity of the poster.
What is also unique about this case is that the person identified as the RateMDs poster was involved in different lawsuit on the other side of Dr. Foda in Foda v. Capital Health Region, [2007] A.J. No. 22; 2007 ABQB 19, where he was making a claim for breach of contract, conspiracy, harassment, defamation, and direct interference with economic relations.
The Court of Appeal ([2007] A.J. No. 668;2007 ABCA 207) upheld a motion to add a party to his statement of claim, but the defamation claim agains this party was struck for lack of evidence using the test in Botiuk v. Toronto Free Press Publications Ltd.,
62 …it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:
[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.
But if the party Dr. Foda was seeking to add in the Alberta case – a Donna Canart, Surgical Clinic Coordinator at Leduc Community Hospital – is the same person identified in the California proceedings, this evidence may now be available. Canart allegedly filed a report against Dr. Foda according to the Capital Health Corporate Workplace Respect Policy, raising issues in the Alberta case of malicious prosecution. However, similar defamation claims in Alberta were made against co-defendant Linda Scott. The California case has only had two hearings to date, and Dr. Foda only spoke in general terms to Sam Solmon, so it is difficult to ascertain which specific party was behind the RateMDs posting.
Even when a claim is substantiated, it is possible for either party to turn malicious. The Foda case highlights that litigants in lawsuits can and will attempt to affect the reputation of the opposing party online, something I’ve predicted repeatedly. All types of litigation will invariably cross over into this specialized area of law.
Some of these rating sites allow the professors to respond to their students, even with video. Or, as they put it,
Your professors have been reading your comments on RateMyProfessors.com. Now it’s their turn…
I don’t see other professions going the same way, given the nature of client solicitation. So where do people turn for help?
Wilson concludes,
Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is “reputation management law.” It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up…
Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.
Everyone reading this is now searching their name on LawyerRatingz.com, or other sites like CanLaw. They’re probably wondering what they would do if they were deliberately maligned, and trying to figure out who is the best”reputation management lawyer” they know, if any.
And that’s assuming that you waited until the end of the article to do so.
Beware the libel
Simon Singh, a British journalist and a popularizer of science, is fighting a lawsuit. In his article for the Guardian, Singh wrote that the British Chiropractic Association (BCA) promoted bogus treatments. The BCA sued him for libel. Is it right that our words can cost us dearly? What about the freedom of speech? First of all, let’s find out what the freedom of speech really is all about. Then, let’s see why we have libel laws and what we can learn from the Singh case. The Internet gives everyone a potential audience, so watch what you say if you have libel laws in your country.
The Western culture loves the freedom of expression. In Canada, the Charter of Rights and Freedoms calls it a “fundamental” freedom that “everyone” has. In the US, the First Amendment prohibits Congress from “abridging the freedom of speech.” We value our right to speak freely, and we believe it is essential for democracy. It’s not surprising then that libel suits ruffle a few feathers. But constitutional laws like the Charter and the Bill of Rights protect our speech from the government, not from our neighbours.
