On January 12, when we published links to the factums regarding the lawsuit initiated by Phyllis Morris, we withheld comment — lest we be accused of a conflict of interest in our interpretation of the facts.
The following is reprinted from the Auroran, week of Jan 20th, 2010.
Court documents released to public
In advance of the eventually cancelled hearing into former mayor Phyllis Morris’ multi-million dollar lawsuit against three local bloggers, court documents pertaining to the case were released to the public.
These factums, filed before the courts, outline the case of Ms: Morris and the defence of Richard Johnson, Elizabeth Bishenden, and former Councillor Bill Hogg, the three named in suit among others. They also flesh out some of the gaps that have appeared in previously released documents.
Ms. Morris’ factum argues that the anonymous “malicious, false, and defamatory” statements on the Aurora Citizen blog have caused her and her reputation “serious irreparable harm:’
It further alleges that Mr. Hogg is a moderator on the site with the “power to publish, republish, encourage or delete postings or comments”, and that Elizabeth Bishenden was a one-time moderator of the website. The updated factum removes claims in earlier court papers asserting that Richard Johnson was also a moderator. He is now cited as “a frequent poster and commentator on the website:’
Earlier claims by Ms. Morris that the anonymous parties in the suit attempted to settle are also clarified in her document.
“[Jordan Goldblatt, lawyer ·for the named individuals, not representing the anonymous defendants] transmitted a settlement offer to the Plaintiff on behalf of the anonymous defendants, and therefore either knows the anonymous defendants, or has means of determining their·identity:” it states.
Citing the affidavit submitted by Town Solicitor Christopher Cooper, continues the narrative, quoting a voicemail from Mr. Goldblatt.
“…The people who made the anonymous post are prepared to have settlement discussions with you:’ it reads. “I can tell you I don’t represent these people. What I have been asked to convey to you is that if you are amenable to those kind [sic] of settlement discussions, then I will find a way to get this information back into these peoples’ hands. I’m saying plural but for all I know it could be one person and they will find a way to contact you:’
In arguing the legal principles within the document, Ms. Morris asks whether an order should be given that Mr. Hogg, Ms. Bishenden, Mr. Johnson, and Mr. Goldblatt provide “certain information regarding the identity of the owner of the blog account and the blog commenters so that the true identity of the persons posting defamatory messages may be determined.
“The Plaintiff seeks to obtain the identity of the message poster(s) in order that she might properly bring action against the proper defendant(s) against whom she makes the allegations in these proceedings.
“… The moving party has been unable to obtain the information from other persons or from Automattic, Inc., and it would be unfair to force the Plaintiff to proceed with this action without having the opportunity of identifying the true defendant:’
Ms. Morris insists in the fact the “defamatory” statements in question are untrue and they are also causing her “emotional distress and fear for her safety”
Her documents also touch upon earlier assertions that a government hasn’t the right to sue its citizens, arguing there is “no blanket protection granted to those who wish to defame public servants with respect to’ the execution of their public duties”, but defendants have the defence of fair comment
“Rather than insulating anonymous persons from suit for clearly·” defamatory statements, this Court should order their identities compelled,” it states. “The anonymous defendants can thereafter plead their defences. Without knowledge of the identities of the anonymous defendants, the Plaintiff has no ability to defend her reputation in a court of law:’
On behalf of the respondents, their factum claims the court has nothing before it to evaluate Ms. Morris’ claim as her counsel has not “particularlized” the defamatory words in question.
“Morris has no evidence of urgency or irreparable harm that she will suffer if the mandatory order is not granted;’ they argue. “It is not in the public interest for this Court to order disclosure of the information sought by Morris where anonymous commentators have a right to remain anonymous in their criticism of an elected-government official.”
The defendants’ factum states that while Mr. Cooper has submitted an affidavit in the case· in his capacity as Town Solicitor, Ms. Morris herself has “proffered no evidence on the motion.” Their factum, however, relies heavily on Mr. Cooper’s affidavit and subsequent cross-examination by their own counsel.
“The allegation made against the individual defendants on this motion is that they are moderators of the website who have access to IP addresses that can be used to track down the identities of the anonymous bloggers” their factum states. “However, Cooper accepted on·cross-examination that he has no information with regard to whether moderators are provided with IP addresses.”
Further nuggets highlighted from Mr. Cooper’s affidavit. include that it claims Mr. Hogg is a moderator of the: website and that this information was given to Mr. Cooper by Mr. Hogg himself. It was revealed that on cross-examination, however, “Cooper more candidly admitted that Mr. Hogg never told him that he was a moderator of [the Aurora Citizen)]:”
Similarly, it goes on to state that Ms. Bishenden and Mr. Johnson are not alleged to have been moderators.”
There is no allegation in the affidavit material that Mr. Johnson ever was or is a moderator:” their factum states. “Cooper admitted on cross-examination that Mr. Johnson is not alleged to be a moderator, and that there is no allegation in the affidavit material that Mr. Johnson was or is a moderator:”
Several legal hurdles have to be overcome by Ms. Morris for her motion to be successful, the defendants go on to argue in their factum. p
“Morris must establish an underlying claim exists: the words complained of have never been particularized; the plaintiff is a government actor that cannot sue for defamation; and the notice provisions under the libel and Slander act have not been complied with”
To strip the Aurora Citizen of its ability to provide anonymity to its posters “on matters of public interest would be a significant imposition and would chill public political discourse” the defence argues. There would be no harm to Ms. Morris should she not obtain the identities of the anonymous posters, they continue.
“Indeed, ‘many’ police complaints have already been initiated, such that if there were any legitimate threat to her, one would assume Police would take ample precautions:’
But this is a matter of free speech, speech that should be protected, they conclude.
“Where the speech in question is geared towards attaining truth, where it is regarding political decision-making, and where self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment, the speech in question must be protected.
“While Morris may not agree with the comments about her governing reputation, they are nonetheless constitutionally protected”
The hearing is now scheduled for March 15.
Aurora Citizen 