February 12, 2008
Now that it appears that Warren Kinsella has abandoned his threatened lawsuit against Blazing Catfur (and his threats against me, too!) I look forward to building the Union of Bloggers more systematically.
By that I mean putting in place a governance structure, financial controls, terms of membership and other basics. Over the next few days I hope to recruit a board of directors — small enough to make decisions, but broad enough to have a variety of views on it.
I have to be candid: now that Kinsella has been effectively run out of town as a nuisance lawsuit threatener, I’m not sure how busy we’ll be!
So to all of you who have written with inquiries about joining, please be patient. I hope to have something substantive to report back to you this month.
February 9, 2008
Glenn Reynolds is a professor of law in Knoxville, Tennessee but he’s better known as the blogger Instapundit. Here’s an interesting essay he wrote about why so few bloggers have been sued in defamation.
Of course, he writes from the American perspective, and their defamation law is more tilted towards defendants (including bloggers) than ours. But his biggest argument is the same: most bloggers analyze and comment on facts, they don’t do primary factual reporting. And, in Canadian law too, if your facts are accurate you have a wide berth to engage in commentary. Even fringe or extremist views can be protected as “fair comment” in Canada, if the underlying facts are accurate.
I have had some bloggers ask that I post a summary of defamation law like this one. I do so because I think defamation law is so fascinating — a delicate balance between the right of someone to protect his reputation, the right of critics to express themselves, and the right of the public to know things in their interest. You can see that three-way balancing act in that primer.
But I am always loathe to publish such summary, for fear that bloggers might be tempted to do a little home-made defamation law, Lionel Hutz-style, rather than get real legal advice. It is my observation that the biggest defamation law errors made by Canadian bloggers is not that they defame people too easily, but that they do the opposite — they are too quick to concede that they have defamed someone, and apologize too easily.
February 9, 2008
Gentle reader, don’t think that I positively want Lionel Hutz Warren Kinsella to sue me or any other blogger. The opposite: it’s important to demonstrate that, when his bluff is called, Kinsella runs away from a fight. That’s important because defamation suits have not been used to intimidate Canadian bloggers; the empty threat of defamation suits did that. And there’s no bigger empty suit than Kinsella. That’s the teaching moment here: the only place where Kinsella “Kicks Ass” these days is in his lovingly-written autobiographies.
Tonight, Kinsella sent me an e-mail saying that if I repeated the claims I made about him last month, he’d sue. As any blogger knows, when you edit a blog post, it writes over the original, so I don’t have the exact words that I used the first time. So I republished the nub of my post again. Instead of suing, he backed away — saying his wife told him to do so, and that I was avoiding a “big fat libel action” by not using his “Libel Notice” as a crib sheet. (Here’s a quiz for our non-lawyer readers: can you name at least two ways in which Lionel Hutz’s e-mail to me fails to meet the legal requirements of a real Libel Notice?)
Anyway, let me go through the boring motions one more time of proving that there’s not a lot of ass-kicking left in the author of Kicking Ass. He says he’s not suing me because I’m not repeating the words in his purported Libel Notice. So let me cut and paste those words right now:
“You claim that the National Post has removed columns I have written for them because they are untrue.”
I stand by that.
“Your claim that the newspaper is “fed up” with my “erosion” of their credibility.“
I stand by that.
“Your claim that I have used my position to advance the interests of my clients.”
I remember I didn’t phrase it that way; I wrote that he wrote boring items about his clients. (I don’t think he actually advanced their interests.)
This isn’t about being mean to Kinsella. I confess, I actually have a soft spot for him and, weirdly, I think he does for me, too. This is about proving to all the bloggers that Kinsella has threatened over the years — Jay Currie, Kathy Shaidle, Mike Brock, Mark Steyn, Blazing Catfur, etc., etc., etc., that if your facts are right, you just don’t have to be scared anymore.
P.S. I think this is the second time in a week that Kinsella said he’s done writing about me. Do you think he means it this time? Will his wife prevail upon him? I don’t think he can go cold turkey!
P.P.S. By my calculation, it’s been a week, and his prediction about the Conservatives “repudiating” my statements on free speech haven’t borne out. We knew Kinsella has, uh, fallen out of touch with the Liberals lately, and he’s obviously missing some important memos from the Post. But is he out of touch with the Tories, too? (At least he has the NDP.)
February 9, 2008
I had a little bit of fun in my last post about Warren Kinsella’s Lionel Hutz-like legal skills — how he didn’t know that lawyers in Canada can practise in any province; how he didn’t think Ontario clients could have an Alberta lawyer; how he didn’t think I could use a law firm as an agency for service, etc. I didn’t just report that stuff for fun — I did it to show that Warren Kinsella, despite describing himself as an “Ass-Kicker”, is all hat and no cattle. Bloggers don’t have to be scared of his threats anymore.
So I was not surprised to read Kinsella’s blog post today – poking fun at the new Union of Bloggers, but not mentioning a word about his legal threat against Blazing Catfur. That’s what I predict most victories will look like for the Union of Bloggers: blowhards just going away once they realize they’re facing a fight.
But Kinsella wrote something weird: he claimed that I had recently taken down a blog post of my own because I received a legal demand from him to do so. Huh?
I sent a note to Kinsella today, asking him to re-send that legal demand to me, because I hadn’t seen it. (He really should read a book about service of legal documents.) Here’s what he wrote back. It looks like the great barrister tried to send me a demand letter, but sent it to my evil twin, who has an e-mail address spelled “ezrra”. D’oh!
Kinsella is right on one thing: I did take down a post a few weeks ago that was a little too jubilant at a setback he had at the National Post. Kinsella says I took down the post because of his demand letter and that it’s bad form for the Shop Steward of the Union of Bloggers to have surrendered so quickly. I’d agree, if it were true — but, as I wrote, I took down my post because it embarrassed the manager who had to rein Kinsella in.
I thought I was being a mensch about it. Instead, Kinsella is trying to use that as an indication that the Union of Bloggers isn’t serious. I don’t think too many people believe Kinsella these days, but it is important that there be no shadow of doubt: the Union of Bloggers doesn’t buckle to politically-motivated, baseless threats. It’s just so important that there be no question about it. So I’ve simply got to put that blog post back up — even if it causes some discomfort to Kinsella’s bosses at the Post.
I didn’t save the original entry, but I can sum it up thusly:
Because of concerns about the accuracy of some of Kinsella’s writing, he is not longer allowed to write about me in the Post. Kinsella has had one entire rant pulled, and two others redacted, to comply with this. (I didn’t request this ban, by the way — I sort of like sparring with the guy and pointing out his errors, but the Post has better things to do.)
I don’t remember everything else I wrote, but I stand by it, including my assertion that Kinsella has written about his clients. I’ll keep you posted if Hutz fires back — assuming he can spell my e-mail address correctly.
February 8, 2008
A couple of weeks ago I wrote on my personal blog about the need for Canadian bloggers to form a mutual aid society to protect themselves from unwarranted attacks on their freedoms.
I have recently experienced one form of those attacks — an out-of-control government “human rights commission” grinding me through a punitive, costly and arbitrary process for two years because I published cartoons that allegedly hurt someone’s feelings. And I’ve observed the other form, much more frequently: in the past few weeks alone, I’ve seen 1, 2, 3, 4, 5 baseless threats of defamation against Canadian bloggers (plus 6, 7 against me), none of which have real merit, but all of which are designed to frighten bloggers (usually conservatives) into censoring themselves.
The common thread amongst all of these threats is that they’re not legitimate legal actions to remedy a real tort committed by bloggers. The blog posts in question all contain true facts and fair comments; no real defamation action lies against any of them. These threats are intimidation tactics — bullying — dressed up in legal robes.
And, unfortunately, they often work. Not because bloggers make a thoughtful decision, with competent legal advice, that they ought to retract a truly false and defamatory statement, but because bloggers make a panicked decision, without legal advice, in fear of the cost and hassle of a lawsuit, and in the hopes of appeasing the threatener. Rudyard Kipling wrote a poem about this sort of thing.
When I mused about a mutual aid society for bloggers, I immediately received several requests for help. Even though I haven’t set up the structure for the Union of Bloggers yet, I’ve accepted two of them, and I have permission to write about one of them: It’s Warren Kinsella’s absurd threat against a blogger named Blazing Catfur.
What did Blazing Catfur do? He engaged in satire, which is the deadliest weapon against humourless censors. He demonstrated the foolishness of Kinsella’s logic that:
- Dr. Keith Martin — a Liberal MP, human rights activist, and visible minority — wants to amend the Canadian Human Rights Act;
- Some white supremacists want to amend the CHRA too;
- Therefore Martin’s idea is tainted by association.
I thought Blazing Catfur’s satirical deployment of that absurd guilt by association logic was far more powerful than any stern criticism. And I think Kinsella did, too, or else he wouldn’t have threatened a lawsuit against Blazing Catfur and another blogger, Mike Brock, who engaged in a similar satire.
So the Union of Bloggers — before we’re formally incorporated — has a case.
But that’s not the most interesting part of the story.
I contacted Kinsella to advise him that I was legal counsel for Blazing Catfur. I didn’t expect what came next.
First, Kinsella demanded to know if I was licensed to practise law in Ontario. I thought it was a trick question: all Canadian lawyers now have the right to practise law across the country. I thought Kinsella was just joking around, but he wasn’t — he genuinely didn’t know that, and he told me he was going to immediately (it was Sunday night, if I recall) write a letter to the Law Society to put a stop to my shenanigans!
Interprovincial mobility is probably the single largest change to the practise of Canadian law since law firms were allowed to advertise; the fact that Kinsella didn’t know that — and even doubted me when I gently broke the news to him — was stunning. I’m guessing the guy doesn’t do a lot of law, though he talks a good game to bloggers.
The next item of weirdness came quickly: I gave Kinsella my address for service of his legal documents — where he should send all future correspondence and any lawsuits. I use a great old Alberta firm called McLennan Ross as my agents, and I gave their contact info to Kinsella. Again, all standard practise. But this, too, seemed to freak Kinsella out — he modestly demanded that Blazing Catfur be represented by an Ontario lawyer (perhaps a lawyer of his own choosing?) And, war-room-style, he fired off another angry e-mail to McLennan Ross’s partners. (My lawyer and I had a good laugh about it, but McLennan Ross — all class – wrote back politely.)
And then Kinsella demanded to know the identity of Blazing Catfur. And when I confessed that I didn’t know it, he made another legal boo-boo — claiming that meant he wasn’t obligated by the notice provisions of Ontario’s libel laws.
I thanked Warren for his time, and recommended that he hire a real libel lawyer to help him out. Kinsella’s Lionel Hutz-like ignorance about legal mobility, agents for service and libel notice wouldn’t be caught by a non-lawyer blogger, who might believe Kinsella’s PR about being a legal jedi. But I admit I was stunned — maybe I, myself had actually bought the hype that Kinsella was a tough customer. I felt like I was dealing with an articling student of the calibre of Khurrum Awan, or Jason Cherniak. (What is it with all of these Liberal lawyers anyways?)
It’s been a week, and I haven’t received any libel notice, or even a demand letter, from Kinsella or his lawyers about Blazing Catfur. Maybe it’s still coming. Or maybe Kinsella’s lawyer is slowly going over with him, uh — how do you say it? — the law. Just because someone hurts your feelings, doesn’t mean you have a human rights case. And just because someone makes fun of you, doesn’t mean you have a defamation case.
I mention all of this because it goes to the heart of the Union of Bloggers. Part of the idea of the mutual aid society is that if a Kinsella were actually to launch a defamation action and fight all the way, there would be a group with the legal, financial and political resources to be there all the way. But the bigger idea is that bloggers no longer live in fear of baseless lawsuits, and engage in self-censorship or — worse — issue grovelling apologies for doing nothing wrong other than hurting someone’s political feelings. That’s what really happens — bloggers give up without a fight, because they’re scared. I’m here to say there’s nothing to be scared of.
That’s Kinsella: all talk, no action. Lots of bullying when it comes to non-lawyers. Lots of self-congratulatory spin. But the first time a blogger — the hilariously named Blazing Catfur — lawyers up, Kinsella falls apart. I’ve never had a lawyer try harder to bump me from a case before its even began. I’d take that as a compliment, but I get the feeling Kinsella would try to bump any real lawyer off the case — he’s not used to a level playing field.
Of course, I hope Kinsella simply forgets his threat against Blazing Catfur. But if he did decide to double down, it would be a great case for the Union of Bloggers: the facts and the law are on our side, and Kinsella is hyper-sensitive to embarrassment. I have to admit, I’d enjoy beating him, and I’m sure Blazing Catfur would, too.
That’s it for now. I’ll keep you posted on Kinsella’s next move, if there is one other than quietly backing down. That’s not his style; but neither is he accustomed to dealing with a blogger who actually fights back.
As to the details of the Union of Bloggers, I hope to have those finalized this month, ranging from the monthly dues payment (I’m guessing $1/month per blogger) to the rules of engagement. In the meantime, I’m taking Blazing Catfur’s case pro bono — but if folks feel like chipping in, they can hit the PayPal button up above.
I don’t know about you, but I feel like the blogosphere is freer already.