Steve Proulx, who like me has been following the Journal de Montréal lockout closely, is being sued by the paper, apparently for a document he posted to his blog (later deleted) from the STIJM union which was critical of Journal management. (UPDATE: A Facebook group has been setup to support Steve)

Hugo Dumas reveals this in a column which also says the union at TVA is complaining that content its journalists provide to the business network Canal Argent is being used in the Journal and they're acting as de facto scabs.

Meanwhile

• The STIJM was protesting outside Quebecor-owned Archambault. Metro has video. Rue Frontenac has a photo gallery.
• The STIJM is also asking people to send them photos of giant piles of unread Journals.

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Besides embarrassing the man and painting him with the dreaded Mafia brush, the news sank his company's stock price and just plain pissed him off.

The newspapers involved are:

• Le Journal de Montréal, owned by Sun Media
• La Presse, owned by Gesca
• The Globe and Mail, owned by CTVglobemedia

This makes me want to attend Concordia's next Board of Governors meeting, where Patricia Saputo and Gesca's Jacques Tousignant both sit as members. Awkward...

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The concern is over what impact that might have on comment policies at mainstream media sites. Traditional media (especially local empires in Quebec) are still trying to figure out what to do with this whole Internet thing, and are entirely clueless about the implications of user-generated content. They think forcing users to click a button that says "I agree not to post libel" is enough to protect them from liability.

Coincidentally, an earlier post this week by La Presse star blogger Patrick Lagacé mentions that he's asking for tougher moderation of user comments to get rid of the junk and even cap the length of some discussions.

Ironically, both Martineau's blog and Lagacé's blog require user registration before people can make comments. This stands in contrast to websites like The Gazette's which removed the login requirement to encourage more comments. (Then again, even The Gazette is starting to move back -- their only popular blog, Habs Inside/Out, has changed its policy to require moderation of anonymous comments.)

As any forum gets more popular, it starts to see problems it couldn't predict. Spam is the first to show up, in the form of junk sent by computer to advertise some money-making venture. That can be solved by installing a spam filter, requiring registration or manually moderating comments (or a combination of these).

But then comes the problem of real people posting unwanted things. Libel, flame wars, factual mistakes, personal attacks, trolling, copyrighted works, personal information, pornographic images, off-topic comments, the list goes on. The worst ones will get deleted outright. Border cases might get a polite warning from the blogger or moderator.

For some reason, there's the implication that the goal is to have unedited, unrestricted, free communication in the comments section of blog posts. This innocent-until-proven-guilty mentality means that a lot of useless, mean or uninteresting comments get attached to blogs, comments that are of no use to anyone and are a waste of time and space.

Little by little, big bloggers are starting to restrict that freedom and filter out the noise.

Good.

I moderate comments on this blog. I don't require user registration (because I know how annoying it is), and I tend to let most non-spam through. But nobody but me has the right to say what is published here. I have deleted plenty of personal attacks, unhelpful garbage, trolling comments and other junk that doesn't belong here, and I will continue to do so. At the end of the day, I'm responsible for all the content published here, and it's my ass in the courtroom if anything crosses the line.

I welcome criticism (in fact, some of my best comments are those who reject my entire hypothesis and ridicule my interpretation of the facts), but you have to show your work. Comments like "you suck" and "you're gay" have no place here or on any other blog.

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(See the complete court ruling)

In short, the defence, which is modelled after a similar one in England, protects journalists who execute due dilligence and responsible journalistic practices in their reporting (like fact-checking, making attempts to get the other side of the story, checking sources for hidden agendas etc.), even if they get some of their facts wrong and even if those things are defamatory, when they write articles about issues of public interest.

The case, Cusson v. Quan, concerns an OPP police officer who sued the Ottawa Citizen and its reporters for an investigative piece they wrote about him, questioning his "heroics" after 9/11, going down to Ground Zero to help in recovery efforts. The article alleges he impersonated an RCMP officer and lied about training he and his dog had received. Though the gist of the story seemed to be correct, and some facts were debatable, the jury ruled that the Citizen got enough facts wrong that the officer should be compensated financially.

Ironically, since the Citizen did not use this defence at trial (one might argue it couldn't since the defence didn't exist yet in Canadian law), the appeal was denied and the Citizen still has to pay.

Despite the loss, the Canadian Newspaper Association and other journalist groups are hailing the decision as a victory for journalism in Canada, which will help remove some libel chill that journalists experience even when they do their jobs to the best of their abilities.

Whether a particular piece of journalism qualifies for this defence depends on the following 1o factors (though this is not an exhaustive list):

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.

It's a victory for common sense, albeit thanks to a bit of judicial activism. The court based its decision based more on the laws of other countries and its own opinions of what balance there should be between two charter rights than it did based on Canadian jurisprudence.

A couple things to note about this decision before you start breathing too easily:

1. It's the Ontario Court of Appeal, not the Supreme Court of Canada. So technically it just applies to Ontario. Whether it goes up to the Supreme Court depends on whether someone appeals the decision (since the Citizen lost the case, I guess it would be up to them to do so), but it's a significant enough one that I think they would jump at the chance.
2. Though other provincial courts will probably follow that decision as jurisprudence, Quebec is an entirely different animal. Our laws are very different, and in fact our entire legal system is different from the rest of Canada (distinct society woo!). We're based on civil law, whereas Ontario's system (and the principles on which this judgment is based) are common law.
3. Even if it's accepted here, you still have to do your homework when you write potentially damaging things. This isn't like in the U.S. where a plaintiff has to prove "actual malice" and show you intended to lie or be reckless with facts. They need only show that you were lazy, or sensational, or forgetful, or otherwise irresponsible. Or they can simply show that the reporting wasn't in the public interest.

Still, a good day for journalism.

UPDATE (Nov. 22): CBC lawyer Daniel Henry delves into the ruling for some of its implications.

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The article is long and deals mostly with efforts to get areas of land rezoned from agricultural to residential (not too difficult when your party is in power -- but if you can get through this part without lapsing into a coma, give yourself a cookie). These changes were made before Marois and her husband bought the land, but were supposedly done on their behalf. The really incriminating stuff -- bribes in exchange for lies to get through loopholes -- are based primarily on the statements of a retired construction worker who says he took $1,600 $500 in cash (see update below) after signing an affidavit about his use of an old cottage.

The other interesting part is the allegation that part of the estate (but no fixed structures besides a gate) are built on government-owned land (specifically, land reserved for the construction of the 440 highway extension, which would certainly have a negative impact on property values should it ever come). I've used the Google Maps aerial view of the property to draw a picture here based on details from the article:

As you can see, the "built on government land" part is basically just a driveway, a couple of ponds and a gated entrance. And while I don't mean to lessen the political implications of taking government-owned land for personal use (and because it doesn't belong to you, not paying any taxes on it), I've seen many examples of homeowners using adjacent undeveloped land to walk their dogs, plant gardens or otherwise informally expand their backyards. (Though none would be so bold as to build a gated entrance to it.)

As for The Gazette, they're not exactly sweating bullets. Marsden's story seems very well researched, and the paper is standing by its reporter. And since Marois's lawyer won't comment on what he says they got wrong (seriously folks, why announce to the media that you're taking legal action and then immediately refuse to comment on it?), I'm guessing this is more to save face than it is to right any real factual errors.

UPDATE (Sept. 25): The Gazette repeats its story from yesterday saying Marois's husband Claude Blanchet sent a lawyer's letter and is threatening to sue. (They're milking this story for all it's worth -- as well they should.) The article creates one small hole in the original story: The neighbour now says it was actually $500 instead of $1,600 and that Marsden misunderstood him.

Meanwhile, Cent Papiers wonders why TVA is giving The Gazette lessons in journalism as shown in this LCN video (in which Marsden speaks funny-sounding French and is grilled over whether or not this is a "real story"). The funny thing is that this wasn't such a huge story until Blanchet made it one. His threats to sue is what got every media outlet in town focused on the story.

Oh, and Pauline won her by-election yesterday. Congrats.

UPDATE (Sept. 27): Marsden updates his story with news that Marcel Turcotte, the neighbour whose affidavit is at the centre of this controversy, has issued another affidavit reaffirming his previous one, and contradicting what he told Marsden. It also mentions there was a 5-year lease from the government (1994-1999) for use of the public land. (The paper made it clear in the original article it couldn't determine if such a lease exists.) Managing Editor Raymond Brassard is still standing by his reporter.

Meanwhile, Marois holds a press conference at her Ile Bizard home and vows to follow through with her threat to sue the paper. She takes issue with the suggestions of impropriety, though not with any of the facts of the piece, except for the previously-corrected figure of $500 instead of $1,600 (which she insists was a gift in exchange for the work he went through on their behalf, and not a bribe or pre-negotiated compensation for signing the affidavit). She plans to donate any money she gets to help promote sovereignty (because The Gazette is deliberately targetting sovereignist leaders, she says).

UPDATE (Sept. 28): The 5-year lease was cancelled in 1996, according to Marois, because of snowmobilers using the land. She also says they got permission to install the gate and gate posts at the street entrance.

Marois's lawsuit has been filed and asks for $2 million.

And this funny letter in the Gazette today, defending Marois against the paper's "cheap shot": "If the English are smearing her, she must be very good." The writer vows to vote for Marois next time around, which I'm sure will come as sad news to anglo rights groups who were counting on his support.

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Tremblay's side has some valid points:

• This isn't a case of freedom of speech, it's a libel case. Bloggers are just as responsible as media outlets as far as not using their right to free expression maliciously. Assuming Tremblay's interpretation of the original post is true (that Hand accuses him of fraud and links to the mafia), those are certainly things that someone could make a legitimate libel case out of.
• Tremblay hasn't been charged with any of the crimes he's been associated with. His dispute with Loto-Quebec was settled out of court (the result is sealed), the paintings are still on display, and he hasn't been accused of any direct links to Frank Martorana or other members of the mafia.
• He's not a rich mogul looking to shut down a blog. His injunction is very specific, and doesn't even prevent Hand from discussing Tremblay, just from repeating the allegations.
• Hand was clearly exacerbating the situation through other media until recently when his lawyer told him to clam up.

On the other hand, he doesn't answer some of Chris Hand's main criticisms:

• Why hasn't Tremblay attempted to contact Hand about all this, instead of issuing threatening lawyer's letters every couple of weeks?
• Why not have Hand simply correct the post, which he indicates he was perfectly willing to do, instead of bringing him to court?
• Why is the Loto-Quebec press release, which Tremblay says is false, still available to the public? How are we supposed to know that the paintings weren't fake (if that is indeed the case) if the settlement is secret?
• Why is he suing for $25,000, and now trying to increase that to $60,000?
• Why not simply try to settle the case out of court, since both sides are poor and the only people to win here are the lawyers?

Either way, unless these two can start talking to each other like humans, a judge is going to decide which story is more sympathetic. And lots of money and time is going to be wasted on both sides.

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After hearing about an hour's worth of arguments from both sides, the judge has ordered a renewal of the existing injunction against Hand, but without changes asked by the plaintiff (those seemed centred around preventing Hand from using other media to make statements against Mr. Tremblay). The injunction prohibits Chris Hand from saying that Pierre-Antoine Tremblay is associated with Frank Martorana and the mafia, or that he tried to sell fake paintings to Loto-Quebec. Both statements Tremblay's lawyer says are entirly false.

The injunction lasts until Sept. 6, 2007, when further hearings will take place on this matter.

Among other things of note:

• Tremblay wasn't present in court.
• Tremblay and his lawyer have increased their monetary demands. What was once $25,000 is now $60,000.
• Hand was barely recognizable. His hippie haircut has been replaced with a professional-looking crewcut. He sat well-behaved in a suit (no tie) and didn't bite the head off even one chicken throughout the proceedings.
• The proceedings were held entirely in French, except for what was read from blog posts and newspaper articles.
• From the plaintiff's lawyer: "Comment ça se dit en français 'quack'?" Hand's mother tried to explain before Chris cut her off and explained that she's helping opposing council.
• Legal chit-chat between the lawyers and court reporter are always cute. They talk about the temperature of the drinking water in the courtroom, or what lawyer was at which firm when, or about the noise of construction on the floors above them.
• Shout-outs to Montreal Tech Watch and Hou-Hou Blog whose posts were used in evidence by the plaintiff. No mention of my huge post, but my article did get quoted so I won't complain.
• Both lawyers were very effective at pleading their case. The plaintiff's arguments boiled down to the fact that this is a very specific injunction (the facts of the libel case weren't argued today), that Hand is using other media (Yahoo! Groups, other blogs, personal communication at YULblog meetings) to repeat the same allegedly libellous claims, and that Zeke's Gallery is in competition with Tremblay's Galerie 2000 (a claim Chris calls an exaggeration).
• There are still three related cases pending. All have been postponed to Sept. 6:
  • The injunction preventing Hand from making these statements about Tremblay
  • A contempt of court charge for allegedly ignoring the previous injunction
  • The libel case itself
• Tremblay's lawyer said outright that the paintings sold to Loto-Quebec were not forged. This is the first complete denial of this charge I've heard. The out-of-court settlement between Tremblay and Loto-Quebec is secret, but I'd love to find out what the real story is behind it.
• The Zeke's Gallery blog remains effectively shut down. Hand isn't sure if he'll bring it back, even if he ends up winning the case.

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The point is well taken. Chris Hand shouldn't be immune from prosecution for libel just because he's a blogger.

But this whole mess was caused by Tremblay himself, who instead of sending an email with his side of the story (a side he hasn't expressed publically, in part because of a confidentiality agreement with the Loto-Quebec thing and in part because he's just chosen not to) sent a lawyer's letter to Hand. Then, when Hand complied with the letter, he sent another more threatening one making more demands.

Tremblay (as far as I know) didn't sue Radio-Canada, Le Devoir or the other media who first made these claims about him (UPDATE: He sued La Presse, who made much more outlandish statements about him, and lost). And despite an agreement which Tremblay implies was in his favour (as the paintings are still on display), the original press release which accused Tremblay of fraud is still online.

Hand and Tremblay (or their lawyers) meet in front of a judge tomorrow. Let's hope they can still resolve this amicably.

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The local blogosphere is abuzz with outrage over the situation affecting the Zeke's Gallery blog, whose posts have now all disappeared. I wrote about the case in The Gazette last week.

There's some misinformation and faulty assumptions going around, so I'm going to do the best I can to explain what exactly happened here, in chronological order.

Feb. 7, 2003: Radio-Canada reports that Pierre-Antoine Tremblay, an art dealer/agent, sold 26 paintings to Loto-Quebec for $130,000, and that the paintings' authenticity are in doubt. It also mentions that Tremblay has been accused of fraud dozens of times in the past decade.

Feb. 14, 2003: Le Devoir goes into more detail about the story, which is more about Tremblay's boss at the SAQ, Gaëtan Frigon, who also ran Loto-Quebec, and the apparent conflicts of interest that led to Frigon's departure from Loto-Quebec.

March 5, 2003: Loto-Quebec issues a press release saying that they have confirmed at least one work sold to them by Tremblay is "forged" and another is of "questionable authenticity".

Nov. 24, 2006: The National Post publishes an article about Frank Martorana, a car dealer who police determined was involved with the Rizzuto crime family. The article makes no mention of Tremblay. Some time prior to this date (probably June 2, 2005), an article appears on this website about Martorana, saying he owned a Japanese restaurant with Tremblay and stole paintings from Tremblay's gallery. (Tremblay would later clarify that the business relationship was with Martorana's wife, not Martorana himself).

Nov. 25, 2006: Chris Hand posts an item to his blog about the National Post article, and includes links to the previous news stories:

Howdy!

According to this article, a guy named Frank Martorana was in business with Pierre-Antoine Tremblay, who tried to sell some fake paintings to Loto-Quebec. Because of him, a bunch of different police forces here in Canada started to investigate the Mafia for something like five years, and resulted in them arresting a gazillion and a half people on Thursday.

This might even be a better story than Victor Pellerin.

April 10, 2007: Louis Frédéricq Carmichael, who represents Tremblay, sends a mise en demeure to Hand. It takes issue with the sentence that begins "Because of him", because it seems to say things about Tremblay which are actually true about Martorana. It threatens and injunction if the post is not corrected immediately and says that he will be checking the site every hour.

April 14, 2007: Hand says he receives the mise en demeure on this day. He says he immediately called Carmichael and left a message.

April 16, 2007: Hand posts a scanned copy of the mise en demeure to the blog, along with an explanation saying Tremblay "doesn't like this here blog".

April 17, 2007: Hand says Carmichael returns Hand's message and explains that Tremblay wants the post fixed to make it clear that he's talking about Martorana, not Tremblay. Hand edits the post (replacing "because of him" with "because of Martorana") and laments that he won't be going to court after all over this. (My post on this)

April 19, 2007: Carmichael issues a second mise en demeure, saying he is "surprised" to see the first go online (clearly Carmichael doesn't know Hand very well). He says Hand's attitude is only escalating the situation, and that legal action is being planned. He makes three demands that were not present in the original mise en demeure:

1. Remove any suggestion that Tremblay owns Galerie 2000 Inc. (Hand contends to this day he can find no post on his blog that makes this claim)
2. Remove any suggestion that Tremblay was "associated" with Martorana. (It objects to the "sous-entendus" that Tremblay might have been associated with the mafia)
3. Remove any suggestion that Tremblay tried to sell forged paintings to Loto-Quebec. (It notes that an out-of-court settlement was reached without Tremblay admitting fault and the paintings are still at Loto-Quebec)

April 20, 2007: Hand receives the second letter. He calls Carmichael the next day and leaves another message. Hand says Carmichael never returns the call.

April 23, 2007: Hand posts the second letter on his blog. (My post on this notes that other bloggers are now starting to pay attention to the case)

May 14, 2007: Carmichael files an injuncton request, repeating the three demands of the second letter and demanding $25,000 from Hand.

May 17, 2007: Not to sound like a broken record or anything, but Hand posts the injunction request (at least the first page -- it's 17 pages long) to the blog.

May 29, 2007: Tremblay wins the first round in court, getting a temporary injunction forcing the posts off the blog. Hand, of course, posts the judgment to his blog the next day and removes the posts. (My post on this)

May 31, 2007: The first media coverage of the case in Hour.

June 6, 2007: Hand shows up to a YULblog meeting with documents in hand, enlisting the support of local bloggers in his cause.

June 9, 2007: My article in The Gazette. I'm promptly Geisted.

June 16, 2007: The Globe and Mail publishes an article about blogs and libel chill, mentioning Hand prominently. My post on the subject opines that bloggers don't deserve special treatment compared to the rest of the media.

June 18, 2007: On the advice of his lawyer, Hand removes access to all posts on the Zeke's Gallery blog.

June 21, 2007: Hand is in court to fight a permanent injunction. The judge renews the injunction, but without increased restrictions demanded by the plaintiff.

June 26, 2007: Blogger Michel Leblanc publishes a statement from Tremblay explaining that he's a poor businessman just trying to clear his good name. I examine some points and counter-points.

Sept. 6, 2007: Next day in court for this case and related cases.

Other blog coverage of this case:

• Hugh McGuire
• Montreal Tech Watch
• Mathew Ingram
• Hou-Hou Blog
• Julie Belanger
• Midnight Poutine
• Montreal City Weblog
• PublicBroadcasting.ca
• Eva Lake
• web1979
• Brem Experience
• Art Fag
• Benjamin Hammond
• Michel Donais
• Chez Nadia
• Michel Leblanc
• 16 secrets
• The Orange Press (apparently I hate "creative wordplay, or anything creative" -- someone clearly doesn't read this blog)

Other resources:

• Zeke's Gallery Facebook group

My take: Tremblay's attempt to clear his name in a libel case that may or may not have merit has backfired dramatically, and no amount of legal action will make people like him better. Both will have to spend money on lawyers, money they probably won't be refunded. As a result, Hand will be a lot more self-censoring in the future.

On the other hand, this isn't half as important as some people make it out to be. It's not the death of free speech in Canada any more than the multi-million-dollar Pants Lawsuit is the death of dry-cleaning. It's an overzealous litigator going after a small-guy loud-mouth for libel. It's happened before, and it'll happen again.

The real problem here isn't with Canadian media law, it's with the power of lawsuits to intimidate those people without the power to defend themselves.

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The issue isn't all that difficult to understand. Blogging has created an army of citizen journalists. Some write only about the actions of their puppies, others think they're more important than those "MSM hacks". But they all write. And anything you publish is subject to libel law.

What's changed is the way the Internet has democratized media. When college newspapers commit copyright infringement or blatantly libel people, nobody really cares because it's just a few thousand copies and everyone forgets after a while. But with the Internet, a single blog post by some idiot on his couch can reach worldwide exposure with a few good links. In the case of Pierre-Antoine Tremblay, the guy who's suing Chris Hand, a Google search of his name is littered with pages about his lawsuit, and that's what everyone's going to know him by.

Of course, that's all his fault. Had he not brought the legal action in the first place, nobody would have noticed the original post, his Google situation would have been salvageable and he wouldn't be getting all this negative publicity.

On the other hand, these blogs and those college newspapers have one thing in common: they don't have any money. That's the real reason why small-time publishers don't get sued for libel: It's just not worth it. Even if you win, you won't get any money. It's only when you go after the big guys that you can get rich.

Unfortunately, that doesn't stop some people with sensitive egos and lots of time on their hands from launching frivolous, over-the-top lawsuits.

With great power comes great responsibility. We have to watch what we write, and hope that it doesn't come to a point where we have to justify our words in front of a judge.

Kate has some thoughts on this issue as well.

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News: Gallery owner gets lawyers involved.

Jackass: Mise en demeure is in French, despite the blog posting being in English.

Funny story: Apparently the libel claim is based on a misreading of an ambiguous sentence in a blog post.

Happy ending: A simple conversation over the telephone solves everything.

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