Defamation / Reputation, Hate Speech, Political Expression
NPD v. ZDF
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In his conservative blog about Canadian hate speech law, Ezra Levant labeled law student Khurrum Awan a “liar” and an “illiberal Islamic fascist” seeking to destroy Canada’s freedom of expression. The Ontario Superior Court of Justice held that Levant’s comments were defamatory and made with malice. Accordingly, the Court ordered that Levant pay $80,000 in damages.
Khurrum Awan, a law student at the time, alleged a book excerpt published in a magazine was Islamophobic. Awan testified to this affect at a British Columbia Human Rights Tribunal in June 2008, and three expert witnesses also gave testimony.
Ezra Levant is a conservative blogger on hate speech in Canada who wrote about Awan’s testimony on his blog, the Western Standard. On the blog, Levant had also posted a list of 75 articles referencing Awan. Levant, a commenter on human rights commissions’ issues, targeted Awan because of Awan’s connection to the Canadian Islamic Congress’ President, against whom Levant felt ill-will.
In nine different blog posts, Awan claimed that Levant’s statements were defamatory and false. After being the focus of two other complaints under Alberta human rights legislation, Levant was on a stated mission to “demoralize” human rights commissions. Given his experience with the human rights system and his background as a lawyer, Levant believed he had a unique perspective on the system, which Levant referred to repeatedly as “kangaroo courts.”
Levant published these blog posts between 2008 and 2010, and the posts have remained on Levant’s blog ever since, with some later alterations by Levant. Titles for Levant’s relevant blog posts included “Khurrum Awan is a serial liar” and “Awan the liar, part 2.” Though Awan had considered a defamation suit in 2008, he waited until 2009 after Levant posted “Awan the liar, part 8,” which was a lengthy blog post that included hyperlinks to some of Levant’s earlier post about Awan. Levant was served with a libel notice after Awan filed his claim, which he also posted on his blog.
Matheson, J., delivered the opinion of the Court. Awan sought $100,000 in damages, and the court ordered Levant to pay Awan $80,000. Awan also sought an order from the Court that Levant remove the nine specific blog posts from his website. The Court cited an order by the Supreme Court of Canada, in Grant v. Torstar Corp., which outlined the three elements that must be proven for an award of damages for defamation. Namely, a plaintiff must demonstrate that: 1. the words in question were defamatory; 2. the words did refer to the plaintiff; and 3. that the words were actually published, meaning that the words were communicated to at least one person, not including the plaintiff. In this case, the second and third elements were not in dispute. However, the Court needed to evaluate whether the first element of defamation was met.
The Court reiterated the standards for defamation set forth in Botiuk v. Toronto Free Press Publications Ltd and Color Your World v. Canadian Broadcasting Corp., which was cited by Manson v. John Doe No. 1. As discussed in Botiuk, a “defamatory statement is one that has a tendency to lower the reputation of the person to whom it refers in the estimation of right-thinking members of society generally, and in particular, to cause him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem.” Per the decision in Color Your World, the test for defamation is an objective one in which statements are “judged by the standard of an ordinary right-thinking member of society.” In determining Levant’s liability, the Court considered, in turn, each post about which Awan complained. In these posts, the Court found Levant’s language to be defamatory and obviously damaging to Awan’s reputation, based on the views of the “ordinary right-thinking members of society.” The Court also noted the presence of multiple factual errors over the course of Levant’s various blog posts. Levant’s counsel argued that the statements in question were not defamatory because readers of the blog would take Levant’s comments about Awan “at face value,” as readers would be aware of Levant’s tendency to “make outlandish comments at times.” When determining how to interpret the defendant’s words, the Court considered the ordinary meaning. The Court determined that Levant’s labeling of Awan as a “liar” is alone enough to lower Awan’s reputation “among ordinary right-thinking members of society,” even though Levant denied that his words had a defamatory meaning and cited the minority view in WIC Radio Ltd v. Simpson. Though the Court acknowledged similarities between this case and WIC Radio, it agreed with the majority in that case that plainly defamatory statements were not neutralized because of a “known characteristic of the speaker.” The Court also noted that trustworthiness and integrity are important attributes of an aspiring lawyer.
Once the requirements for defamation are met, a court presumes falsity and damages. A defendant can overcome this presumption by presenting a defense that would eliminate liability. Levant relied on the defenses of justification, fair comment, and qualified privilege, and the latter two could be defeated by malice, for which a plaintiff has the burden. The defense of qualified immunity privilege may be granted if the situation meets objective tests of accuracy and fairness. In order to be accurate, the report or statement cannot misstate facts. Fairness relates to balanced reporting and impartiality, though the Court noted that there is some leeway for literary license. As discussed in Hill v. Church of Scientology, if a defendant acted carelessly, then the privilege may not apply, even if the defendant’s conduct was not malicious in nature. The Court considered if Levant’s labeling of Awan as a “liar” was a fair comment or a factual statement. This distinction is based on the view of a “reasonable reader,” as indicated in WIC Radio. Here, the Court determined that the “reasonable reader” would find the labeling of Awan as a “liar” a statement of fact, noting the absence of a statement such as “in my view,” which would have denoted an opinion but is also not alone determinative of a fair comment. The Court noted that “liar” also appeared in the title, which is sometimes the only thing read by a reader, and contained no context or supporting information. The Court did find that other posts were protected by fair comment. After being contacted by a third party about the contents of one blog post, Levant crossed out the “incorrect portion” of this specific blog post. The Court concluded that readers of this post would not have considered the crossed out portion to be defamatory. Malice, which defeats the defense of qualified privilege and fair comment, can be express or implied. Either extrinsic or intrinsic evidence can be used to show malice. Extrinsic evidence is information, aside from actual words, that show the author had an improper motive or ill will. Though Awan argued that Levant was motivated by his desire to de-legitimize the human rights commission, the Court did not believe there was sufficient evidence to support this contention. The Court found that if this goal was Levant’s motivation, he would have attacked the student group as a whole and more broadly. However, the Court did find that Levant had malice against Dr. Elmasry, which Levant re-directed at Awan. The Court also found that there was intrinsic evidence in some of the blog posts that demonstrated malice, which was further indicated by the numerous errors and Levant’s decision to do minimal or no fact-checking.
Because Levant’s statements were defamatory and the most of his defenses were either rejected or rebutted with malice, the Court ordered that Levant pay general damages of $50,000 and aggravated damages of $30,000. The Court also granted injunctive relief and ordered that each post be taken down within 15 days in order to remove the defamatory material.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Ontario Superior Court of Justice’s decision limits the amount of retaliatory hateful or malicious speech permitted by Canadian free speech jurisprudence, but could also cause future speakers to be held liable for defamation for speech that is arguably opinion or fair comment.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Ontario Superior Court of Justice is a trial court general jurisdiction in civil cases within the jurisdiction. Cases are appealed to the Court of Appeal for Ontario, whose cases have mandatory precedential value. However, the case will be persuasive precedent, especially given the publicity accompanying it.
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