The suit by Rosemary Port, the blogger on Skanks in NYC (originally here) outed by Google, may have its parallels in Canada soon.
Brian Bowman of Pitblado LLP in Winnipeg is seeking to reveal the identity of the blogger behind Zeromeanszero.blogspot.com, a political site dedicated largely to the municipal politics in Ottawa, and its mayor, Larry O’Brien. (Bowman posted here on Slaw earlier this year on a different subject).
Canadian law does permit the disclosure under the appropriate circumstance, they just have to convince the court that this qualifies. It’s fair to say Google won’t take down the site and will not disclose info unless they’re ordered to do so by court of law.
Despite the similarities in the cases, there are some notable differences, most important of which is the subject of the blog. Whereas Skanks in NYC might appear at first glance to reference municipal politics of that other great city, it was really about celebrity gossip, fodder much more common for defamation suits.
ZeroMeansZero, on the other hand, appears to be exclusively political. Section 2(b) of the Charter offers the strongest protections for political expression; commercial and hate speech less so. If Bowman’s suit is successful it would probably be the most aggressive online defamation case yet.
Despite these protections, the Supreme Court stated in the largest libel case in Canada, Hill v. Church of Scientology of Toronto,
I simply cannot see that the law of defamation is unduly restrictive or inhibiting. Surely it is not requiring too much of individuals that they ascertain the truth of the allegations they publish. The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases. Those who publish statements should assume a reasonable level of responsibility.
This does raise another question that no court has really figured out yet: how do you genuinely distinguish between protected political speech and hate speech?
A review of the top political blogs in Canada reveals that half the list is a verifiable who’s-who for alleged online hate speech. Many of these sites do name persons by name and attach clearly false and damaging information to it. Some use anonymous blogging to protect themselves from counterattacks, and if their identities could be revealed there would be plenty of would-be plaintiffs.
We may be entering a new era in online journalism, perhaps less of a wild west. But the need for vibrant political debate in Canada recently raised on this site as well is also something that should be kept in mind as we move forward.