3 Regulating Free Expression Online 3 Regulating Free Expression Online

3.1 [Mar. 10] Free Expression: The Law 3.1 [Mar. 10] Free Expression: The Law

What is the purpose of the right to free expression?
What does the right to free expression protect?
When should the right to free expression be limited?
What are the differences between the right to free expression in Canada, the U.S., and international human rights law?

3.1.1 U.S. Constitution, First Amendment (READ all) 3.1.1 U.S. Constitution, First Amendment (READ all)

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

3.1.2 Brandenburg v. Ohio 3.1.2 Brandenburg v. Ohio

Supreme Court of the United States

395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827, 1969 U.S. LEXIS 1367, SCDB 1968-124

No. 492

1969-06-09

395 U.S. 44489 S.Ct. 182723 L.Ed.2d 430Clarence BRANDENBURG, Appellant,

State of OHIO.

No. 492.Argued Feb. 27, 1969.Decided June 9, 1969.

Allen Brown, Cincinnati, Ohio, for appellant.

Leonard Kirschner, Cincinnati, Ohio, for appellee.

PER CURIAM.

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for 'advocat(ing) * * * the duty, necessity, or propriety

Page 445

of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform' and for 'voluntarily assembl(ing) with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.' Ohio Rev. Code Ann. § 2923.13. He was fined $1,000 and sentenced to one to 10 years' imprisonment. The appellant challenged the consitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, 'for the reason that no substantial constitutional question exists herein.' It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948, 89 S.Ct. 377, 21 L.Ed.2d 360 (1968). We reverse.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan 'rally' to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution's case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present

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other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews.¹ Another scene on the same film showed the appellant, in Klan regalia, making as peech. The speech, in full, was as follows:

'This is an organizers' meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.

'We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.'

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The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of 'revengeance' was omitted, and one sentence was added: 'Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.' Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, Cal. Penal Code §§ 11400—11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927). The Court upheld the statute on the ground that, without more, 'advocating' violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507, 71 S.Ct. 857, at 866, 95 L.Ed. 1137 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.² As we

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said in Noto v. United States, 367 U.S. 290, 297—298, 81 S.Ct. 1517, 1520—1521, 6 L.Ed.2d 836 (1961), 'the mere abstract teaching * * * of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' See also Herndon v. Lowry, 301 U.S. 242, 259—261, 57 S.Ct. 732, 739—740, 81 L.Ed. 1066 (1937); Bond v. Floyd, 385 U.S. 116, 134, 87 S.Ct. 339, 348, 17 L.Ed.2d 235 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). See also United Stats v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).

Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who 'advocate or teach the duty, necessity, or propriety' of violence 'as a means of accomplishing industrial or political reform'; or who publish or circulate or display any book or paper containing such advocacy; or who 'justify' the commission of violent acts 'with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism'; or who 'voluntarily assemble' with a group formed 'to teach or advocate the doctrines of criminal syndicalism.' Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime

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in terms of mere advocacy not distinguished from incitement to imminent lawless action.³

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.⁴ Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

Mr. Justice BLACK, concurring.

I agree with the views expressed by Mr. Justice DOUGLAS in his concurring opinion in this case that the 'clear and present danger' doctrine should have no place

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in the interpretatio of the First Amendment. I join the Court's opinion, which, as I understand it, simply cites Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), but does not indicate any agreement on the Court's part with the 'clear and present danger' doctrine on which Dennis purported to rely.

Mr. Justice DOUGLAS, concurring.

While I join the opinion of the Court, I desire to enter a caveat.

The 'clear and present danger' test was adumbrated by Mr. Justice Holmes in a case arising during World War I—a war 'declared' by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said:

'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.'

Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561, also authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing security 'by words of persuasion.' Id., at 206, 39 S.Ct. at 250. And the conviction in Frohwerk was sustained because 'the circulation of the paper was

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in quarters where a little breath would be enough to kindle a flame.' Id., at 209, 39 S.Ct., at 251.

Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566, was the third of the trilogy of the 1918 Term. Debs was convicted of speaking in opposition to the war where his 'opposition was so expressed that its natural and intended effect would be to obstruct recruiting.' Id., at 215, 39 S.Ct. at 253.

'If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program in expressions of a general and conscientious belief.' Ibid.

In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173, was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out:

'It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.' 250 U.S., at 628, 40 S.Ct., at 21.

Another instance was Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360, in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542, in which again Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.

Those, then, were the World War I cases that put the gloss of 'clear and present danger' on the First Amendment. Whether the war power—the greatest leveler of them all—is adequate to sustain that doctrine is debat-

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able. The dissents in Abrams, Schaefer, and Pierce show how easily 'clear and present danger' is manipulated to crush what Brandeis called '(t)he fundamental right of free men to strive for better conditions through new legislation and new institutions' by argument and discourse (Pierce v. United States, supra, at 273, 40 S.Ct. at 217) even in time of war. Though I doubt if the c lear and present danger' test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

The Court quite properly overrules Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous.

Mr. Justice Holmes, though never formally abandoning the 'clear and present danger' test, moved closer to the First Amendment ideal when he said in dissent in Gitlow (Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 626, 69 L.Ed. 1138):

'Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.'

We have never been faithful to the philosophy of that dissent.

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The Court in Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id., at 259—261, 57 S.Ct., at 739—740. And see Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534. In Bridges v. California, 314 U.S. 252, 261—263, 62 S.Ct. 190, 192 194, 86 L.Ed. 192, we approved the 'clear and present danger' test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, we opened wide the door, distorting the 'clear and present danger' test beyond recognition.¹

In that case the prosecution dubbed an agreement to teach the Marxist creed a 'conspiracy.' The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants 'intended to overthrow the Government 'as speedily as circumstances would permit." Id., at 509—511, 71 S.Ct., at 867. The Court sustained convictions under the charge, construing it to mean a determination of "whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."² Id., at 510, 71 S.Ct., at 868, quoting from United States v. Dennis, 183 F.2d 201, 212.

Out of the 'clear and present danger' test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U.S. 298, 318, 77 S.Ct. 1064, 1076, 1 L.Ed.2d 1356. But an 'active' member, who has a guilty knowledge and intent of the aim to overthrow the Government

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by violence, Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836, may be prosecuted. Scales v. United States, 367 U.S. 203, 228, 81 S.Ct. 1469, 1485, 6 L.Ed.2d 782. And the power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness. Barenblatt v. United States, 360 U.S. 109, 130, 79 S.Ct. 1081, 1094, 3 L.Ed.2d 1115. And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts.

JudgeL earned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the 'not improbable' test, United States v. Dennis, 2 Cir., 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the 'clear and present danger' test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes' creation of the 'clear and present danger' test, he said, 'I cannot help thinking that for once Homer nodded.'

My own view is quite different. I see no place in the regime of the First Amendment for any 'clear and present danger' test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it.

When one reads the opinions closely and sees when and how the 'clear and present danger' test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.

Action is often a method of expression and within the protection of the First Amendment.

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Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted?

Suppose one rips his own Bible to shreds to celebrate his departure from one 'faith' and his embrace of atheism. May he be indicted?

Last Term the Court held in United States v. O'Brien, 391 U.S. 367, 382, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672, that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying:

'The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration.' 391 U.S., at 377 378, 88 S.Ct., at 1679.

But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment.

The act of praying often involves body posture and movement as well as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is 'free speech plus.' See Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 819, 86 L.Ed. 1178 (Douglas, J., concurring); Giboney v. Empire Storage Co., 336 U.S. 490, 501, 69 S.Ct. 684, 690, 93 L.Ed. 834; Hughes v. Superior Court, 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985; National Labor Relations Board v. Fruit and Vegetable Packers, 377 U.S. 58, 77, 84 S.Ct. 1063, 1073, 12 L.Ed.2d 129 (Black, J., concurring), and id., at 93, 84 S.Ct. at 1081 (Harlan, J., dissenting); Cox v. Louisiana, 379 U.S. 559, 578, 85 S.Ct. 466, 468, 476, 13 L.Ed.2d 487 (opinion of Black, J.); Amalgamated Food Employees v. Logan Plaza, 391 U.S. 308, 326, 88 S.Ct. 1601, 1612, 20 L.Ed.2d 603 (Douglas, J., concurring). That means that it can be regulated when it comes to the 'plus' or 'action' side of the protest. It can be regulated as to

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the number of pickets and the place and hours (see Cox v. Louisiana, supra), because traffic and other community problems would otherwise suffer.

But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card.

One's beliefs have long been thought to be sanctuaries which government could not invade. Br enblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an 'active' Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.

The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536—537, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (Douglas, J., concurring.) They are indeed inseparable and a prosecution can be launched for the overt

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acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience.³

^{^1. The significant portions that could be understood were:}

'How far is the nigger going to—yeah.'

'This is what we are going to do to the niggers.'

'A dirty nigger.'

'Send the Jews back to Israel.'

'Let's give them back to the dark garden.'

'Save America.'

'Let's go back to constitutional betterment.'

'Bury the niggers.'

'We intend to do our part.'

'Give us our state rights.'

'Freedom for the whites.'

'Nigger will have to fight for every inch he gets from now on.'

^2. It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C. § 2385, embodied such a principle and that it had been applied only in conformity with it that this Court sustained the Act's constitutionality. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U.S. 298, 320 324, 77 S.Ct. 1064, 1077—1079, 1 L.Ed.2d 1356 (1957), in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to its tendency to produce forcible action.

^3. The first count of the indictment charged that appellant 'did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform * * *.' The second count charged that appellant 'did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism * * *.' The trial judge's charge merely followed the language of the indictment. No construction of the statute by the Ohio courts has brought it within constitutionally permissible limits. The Ohio Supreme Court has considered the statute in only one previous case, State v. Kassay, 126 Ohio St. 177, 184 N.E. 521 (1932), where the constitutionality of the statute was sustained.

^4. Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, 299 U.S. at 364, 57 S.Ct. at 260: 'The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.' See also United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588 (1876); Hague v. CIO, 307 U.S. 496, 513, 519, 59 S.Ct. 954, 963, 965, 83 L.Ed. 1423 (1939); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460—461, 78 S.Ct. 1163, 1170—1171, 2 L.Ed.2d 1488 (1958).

^1. See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev. 1182, 1203—1212 (1959).

^2. See Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295, where a speaker was arrested for arousing an audience when the only 'clear and present danger' was that the hecklers in the audience would break up the meeting.

^3. See Mr. Justice Black, dissenting, in American Communications Assn. C.I.O. v. Douds, 339 U.S. 382, 446, 449, 70 S.Ct. 674, 707, 709, 94 L.Ed. 925 et seq.

3.1.3 Canadian Charter of Rights and Freedoms, ss. 1-2 (READ all) 3.1.3 Canadian Charter of Rights and Freedoms, ss. 1-2 (READ all)

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

3.1.4 R. v. Keegstra, [1990] 3 S.C.R. 697 (READ Headnote only) 3.1.4 R. v. Keegstra, [1990] 3 S.C.R. 697 (READ Headnote only)

R. v. Keegstra, [1990] 3 S.C.R. 697

Her Majesty The Queen Appellant

James Keegstra Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General for New Brunswick,

the Attorney General of Manitoba,

the Canadian Jewish Congress,

the League for Human Rights of B'nai Brith,

Canada, Interamicus, the Women's Legal

Education and Action Fund, and the

Canadian Civil Liberties Association Interveners

indexed as: r. v. keegstra

File No.: 21118.

1989: December 5, 6; 1990: December 13.

Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.

on appeal from the court of appeal for alberta

Constitutional law -- Charter of Rights -- Freedom of expression ‑- Hate propaganda -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Criminal Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter.

Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(3)(a) of Criminal Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.

Constitutional law -- Charter of Rights -- Reasonable limits -- General approach to s. 1 of Canadian Charter of Rights and Freedoms.

The accused, an Alberta high school teacher, was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti‑semitic statements to his students. Prior to his trial, the accused applied to the Court of Queen's Bench for an order quashing the charge. The court dismissed the application on the ground that s. 319(2) of the Code did not violate freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The court, for want of proper notice to the Crown, did not entertain the accused's argument that s. 319(3)(a) of the Code violated the presumption of innocence protected by s. 11(d) of the Charter. Section 319(3)(a) affords a defence of "truth" to the wilful promotion of hatred but only where the accused proves the truth of the communicated statements on a balance of probabilities. The accused was thereafter tried and convicted. On appeal the accused's Charter arguments were accepted, the Court of Appeal holding that ss. 319(2) and 319(3)(a) infringed ss. 2(b) and 11(d) of the Charter respectively, and that the infringements were not justifiable under s. 1 of the Charter.

Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be allowed. Sections 319(2) and 319(3)(a) of the Code are constitutional.

(1) Freedom of Expression

Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: Communications which wilfully promote hatred against an identifiable group are protected by s. 2(b) of the Charter. When an activity conveys or attempts to convey a meaning, through a non-violent form of expression, it has expressive content and thus falls within the scope of the word "expression" as found in the guarantee. The type of meaning conveyed is irrelevant. Section 2(b) protects all content of expression. In enacting s. 319(2) of the Code, Parliament sought to prohibit communications which convey meaning. Section 319(2), therefore, represents an infringement of s. 2(b).

Communications which are intended to promote hatred against identifiable groups do not fall within the ambit of a possible s. 2(b) exception concerning expression manifested in a violent form. This exception refers only to expression communicated directly through physical harm. Hate propaganda is not analogous to violence. It conveys a meaning that is repugnant, but the repugnance stems from the content of the message and not from its form. As for threats of violence, they are not excluded from the definition of expression envisioned by s. 2(b).

Sections 15 and 27 of the Charter, which deal with equality and multiculturalism, and the international agreements signed by Canada on the prohibition of racist statements, should not be used to interpret the scope of s. 2(b). It is inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context so requires. The large and liberal interpretation given to freedom of expression indicates that the preferable course is to weigh the various contextual values and factors in s. 1 of the Charter. This section both guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society.

Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression. Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. Additionally, the international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter strongly buttress the importance of this objective.

Section 319(2) of the Code is an acceptably proportional response to Parliament's valid objective. There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism. Section 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. It makes that kind of expression less attractive and hence decreases acceptance of its content. Section 319(2) is also a means by which the values beneficial to a free and democratic society in particular, the value of equality and the worth and dignity of each human person can be publicized.

Section 319(2) of the Code does not unduly impair freedom of expression. This section does not suffer from overbreadth or vagueness; rather, the terms of the offence indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted. The word "wilfully" imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of s. 319(2), must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of s. 319(2), the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences, which clarify the scope of s. 319(2), all support the view that the impugned section creates a narrowly confined offence. Section 319(2) is not an excessive impairment of freedom of expression merely because the defence of truth in s. 319(3)(a) does not cover negligent or innocent error as to the truthfulness of a statement. Whether or not a statement is susceptible to classification as true or false, such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. Finally, while other non-criminal modes of combatting hate propaganda exist, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by communicating hate propaganda, will occasionally require use of the criminal law.

The effects of s. 319(2) are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b). The expressive activity at which s. 319(2) is aimed constitutes a special category, a category only tenuously connected with the values underlying the guarantee of freedom of expression. Hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self‑development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda represents an impairment of the individual's freedom of expression which is not of a most serious nature.

Per La Forest, Sopinka McLachlin JJ. (dissenting): Section 319(2) of the Code infringes the guarantee of freedom of expression. Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non‑violent form of expression, this activity falls within the sphere of the conduct protected by s. 2(b). This section protects all content of expression irrespective of the meaning or message sought to be conveyed, no matter how offensive it may be. The government's purpose in enacting s. 319(2) was to restrict freedom of expression by curtailing what people may say. Section 319(2), therefore, imposes a limit on s. 2(b).

The promotion of hatred in this case does not assume a form which falls outside the protected sphere of s. 2(b). The accused's communications were offensive and propagandistic, but they do not constitute threats in the usual sense of that word. The accused's statements did not urge violence against the Jewish people. They were not made with the intention and do not have the effect of compelling Jewish people or anyone else to do one thing or another. Nor do the accused's statements constitute violence. Violence, as discussed in Dolphin Delivery and Irwin Toy, connotes actual or threatened physical interference with the activities of others. Moreover, statements promoting hatred are not akin to threats or violence. There is nothing in the form of such statements which subverts democracy or our basic freedoms in the way in which violence or threats of violence may. Finally, to suggest that speech, like hate propaganda, which undermines the credibility of speakers belonging to particular groups does not fall within s. 2(b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable.

Sections 15 and 27 of the Charter and the international convenants signed by Canada on the prohibition of racism do not reduce the scope of expression protected by s. 2(b) so as to exclude the accused's statements. First, to do so would be to exclude statements from the protection of s. 2(b) on the basis of their content, an approach which this Court has rejected. Second, given that the protection under s. 2(b) is aimed at protecting individuals from having their expression infringed by the government, it would be a misapplication of Charter values to thereby limit the scope of that individual guarantee with an argument based on s. 15, which is also aimed at circumscribing the power of the state. Third, it would be extremely difficult to balance in the abstract conflicting values such as equality and multiculturalism against freedom of expression. Assuming such balancing were to be done, it would be more appropriately made under s. 1 of the Charter than under s. 2(b). Fourth, Canada's international obligations, and the accords negotiated between international governments, may well be helpful in placing Charter interpretation in a larger context but these obligations are not determinative or limitative of the scope of the Charter guarantees. The provisions of the Charter, though drawing on a political and social philosophy shared with other democratic societies, are uniquely Canadian. As a result, considerations may point, as they do in this case, to a conclusion regarding a rights violation which is not necessarily in accord with those international covenants. Unlike the international covenants, which exclude hate propaganda from the guarantee of speech, the Charter posits a broad and unlimited right of expression under s. 2(b), a right which can only be cut back under s. 1.

Section 2(b) does not protect only justified or meritorious expression. Historical legal limitations on expression which conflict with the larger Canadian conception of free speech must be rejected. While in this case it may be easy to achieve near‑unanimous consensus that the statements contribute nothing positive to our society, experience shows that in other cases it may be difficult to draw the line between speech which has value to democracy or social issues and speech which does not. Attempts to confine the guarantee of free expression only to content which is judged to possess redeeming value or to accord with the accepted values strike at the very essence of the value of the freedom, reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society. A true commitment to freedom of expression demands nothing less.

Section 319(2) of the Code does not constitute a reasonable limit upon freedom of expression. While the legislative objectives of preventing the promotion of hatred, of avoiding racial violence and of promoting equality and multiculturalism are of sufficient importance to warrant overriding the guarantee of freedom of expression, s. 319(2) fails to meet the proportionality test.

Section 319(2) does, to some degree, further Parliament's objective. However, the rational connection between s. 319(2) and its goals is tenuous as there is not a strong and evident connection between the criminalization of hate propaganda and its suppression. Section 319(2) may in fact detract from the objectives it is designed to promote by deterring legitimate expression. Law‑abiding citizens, who do not wish to run afoul of the law, could decide not to take the chance in a doubtful case. Creativity and the beneficial exchange of ideas could be adversely affected. At the same time, it is unclear that s. 319(2) provides an effective way of curbing hate-mongers. Not only does the criminal process attract extensive media coverage and confer on the accused publicity for his dubious causes, it may even bring him sympathy.

Section 319(2) of the Code does not interfere as little as possible with freedom of expression. Section 319(2) is drafted too broadly, catching more expressive conduct than can be justified by the objectives of promoting social harmony and individual dignity. The term "hatred" in s. 319(2) is capable of denoting a wide range of diverse emotions and is highly subjective, making it difficult to ensure that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted. Despite the requirement of "wilful promotion", people who make statements primarily for non‑nefarious reasons may also be convicted under s. 319(2). A belief that what one says about a group is true and important to political and social debate is quite compatible with, and indeed may inspire, an intention to promote active dislike of that group. Such a belief is equally compatible with foreseeing that promotion of such dislike may stem from one's statements. The absence of any requirement that actual harm or incitement to hatred be shown further broadens the scope of s. 319(2), and it is unclear, in practice, if the s. 319(3) defences, including the defence of truth, significantly narrow the ambit of s. 319(2). Moreover, not only is the category of speech caught by s. 319(2) defined broadly, the application of the definition of offending speech i.e., the circumstances in which the offending statements are prohibited is virtually unlimited. Only private conversations are exempt from state scrutiny. Given the vagueness of the prohibition of expression in s. 319(2), there is again a danger that the legislation may have a chilling effect on legitimate activities important to our society by subjecting innocent persons to constraints born out of a fear of the criminal process. Finally, the process by which the prohibition is effected -- the criminal law -- is the severest our society can impose and is arguably unnecessary given the availability of alternate and more appropriate and effective remedies.

Any questionable benefit conferred by s. 319(2) of the Code is outweighed by the significant infringement on the guarantee of freedom of expression. Section 319(2) does not merely regulate the form or tone of expression, it strikes directly at its content. It is capable of catching not only statements like those at issue in this case, but works of art and the intemperate statement made in the heat of social controversy. While few may actually be prosecuted to conviction under s. 319(2) and imprisoned, many fall within the shadow of its broad prohibition. Section 319(2) touches on the vital values upon which s. 2(b) of the Charter rests: the value of fostering a vibrant and creative society through the marketplace of ideas; the value of the vigourous and open debate essential to democratic government and preservation of our rights and freedoms; and the value of a society which fosters the self‑actualization and freedom of its members. An infringement of this seriousness can only be justified by a countervailing state interest of the most compelling nature. However, the claims of gains to be achieved at the cost of the infringement of free speech represented by s. 319(2) are tenuous. Indeed, it is difficult to see how s. 319(2) fosters the goals of social harmony and individual dignity.

(2) Presumption of Innocence

Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: Section 319(3)(a) of the Code, which provides that no person shall be convicted of wilfully promoting hatred "if he establishes that the statements communicated were true", infringes the presumption of innocence guaranteed in s. 11(d) of the Charter. The real concern under s. 11(d) is not whether the accused must disprove an element of the offence or prove a defence. What is decisive is the final effect of the impugned provision on the verdict. If, as in this case, an accused is required to prove some fact on a balance of probabilities to avoid conviction, the impugned provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.

Section 319(3)(a) of the Code constitutes a reasonable limit on the presumption of innocence. Parliament's objective in employing a reverse onus is pressing and substantial. The objective behind s. 319(3)(a) is closely connected with the purpose of s. 319(2). Harm is created whenever statements are made with the intention of promoting hatred, whether or not they contain an element of truth. If the defence of truth is too easily used, Parliament's objective under s. 319(2) will suffer unduly. It is therefore in the furtherance of that same objective that truthfulness must be proved by the accused on a balance of probabilities.

Section 319(3)(a) meets the proportionality test. First, the section has a rational connection to the purpose of preventing the harm caused by hate propaganda. The reverse onus in the truth defence operates so as to make it more difficult to avoid conviction where the wilful promotion of hatred has been proven beyond a reasonable doubt. Second, the section also represents a minimal impairment of the presumption of innocence. By requiring the accused to prove that his statements are true on a balance of probabilities, Parliament made a concession to the importance of truth in freedom of expression values without excessively compromising the effectiveness of s. 319(2). Any less onerous burden would severely skew the equilibrium. Third, the importance of preventing the harm caused by hate propaganda is not outweighed by Parliament's infringement of s. 11(d). The reverse onus found in the truth defence represents the only way in which the defence can be offered while still enabling Parliament to prohibit hate propaganda effectively through criminal legislation; to require that the state prove beyond a reasonable doubt the falsity of a statement would excuse much of the harmful expressive activity caught by s. 319(2) despite minimal proof as to its worth.

Per Sopinka and McLachlin JJ. (dissenting): Section 319(3)(a) of the Code infringes s. 11(d) of the Charter. Under s. 319(2), where the Crown proves beyond a reasonable doubt that the accused wilfully promoted hatred against an identifiable group, the accused will escape liability if, under s. 319(3)(a), he "establishes that the statements communicated were true". By placing the burden of establishing the truth of the statements on the accused, Parliament has contravened the basic principle that the accused need not prove a defence. When an accused is required to prove some fact on a balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.

Section 319(3)(a) of the Code does not constitute a reasonable limit upon the right to be presumed innocent. The section lacks the required degree of proportionality. It is difficult to discern a rational connection between the aims of s. 319(3)(a) and its requirement that the accused prove the truth of his statements. Further, s. 319(3)(a) does not impair s. 11(d) as little as possible. Because of its superior resources, the state is in a better position than the accused to determine whether or not a statement is true or false. If such a determination is impossible, it should not be ruled out that the statements could be more valuable than harmful. These considerations suggest that s. 319(3)(a)'s infringement of the presumption of innocence is neither minimal nor, given the importance of the infringement in the context of prosecutions under s. 319(2), sufficient to outweigh the dubious benefit of such a provision. Parliament intended the truth to be a defence and falsehood to be an important element of the offence created by s. 319(2). That fact, coupled with the centrality of the presumption of innocence in our criminal law, indicates that only a countervailing state interest of the most compelling kind could justify the infringement. It is difficult to see, however, what benefits s. 319(2) in fact produces in terms of stemming hate propaganda and promoting social harmony and individual dignity.

Per La Forest J. (dissenting): It is unnecessary to consider the issues respecting the right to be presumed innocent in s. 11(d) of the Charter.

Cases Cited

By Dickson C.J.

Applied: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232; referred to: R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 S.C.R. 914; Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100; Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285; Boucher v. The King, 1950 CanLII 2 (SCC), [1951] S.C.R. 265; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; Beauharnais v. Illinois, 343 U.S. 250 (1952); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Collin v. Smith, 578 F.2d 1197 (1978), certiorari denied, 439 U.S. 916 (1978); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (1985); Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187; Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), decision reported in part at (1983), 5 C.H.R.R. D/2097; R. v. Carrier (1951), 1951 CanLII 387 (QC CQ), 104 C.C.C. 75; R. v. Zundel (1987), 1987 CanLII 121 (ON CA), 58 O.R. (2d) 129; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326; R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369; Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469; R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713; Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); Cohen v. California, 403 U.S. 15 (1971); Anti‑Defamation League of B'nai B'rith v. Federal Communications Commission, 403 F.2d 169 (1968); Tollett v. United States, 485 F.2d 1087 (1973); Doe v. University of Michigan, 721 F. Supp. 852 (1989); R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588; Roth v. United States, 354 U.S. 476 (1957); New York v. Ferber, 458 U.S. 747 (1982); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985); Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252; Felderer v. Sweden (1986), 8 E.H.R.R. 91; X. v. Federal Republic of Germany, Eur. Comm. H. R., Application No. 9235/81, July 16, 1982, D.R. 29, p. 194; Lowes v. United Kingdom, Eur. Comm. H. R., Application No. 13214/87, December 9, 1988, unreported; Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; R. v. Andrews (1988), 1988 CanLII 200 (ON CA), 65 O.R. (2d) 161, aff'd [1990] 3 S.C.R. 000; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000.

By McLachlin J. (dissenting)

Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Abrams v. United States, 250 U.S. 616 (1919); Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100; Saumur v. City of Quebec, 1953 CanLII 3 (SCC), [1953] 2 S.C.R. 299; Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285; Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] 1 S.C.R. 1067; Attorney General for Canada and Dupond v. City of Montreal, 1978 CanLII 201 (SCC), [1978] 2 S.C.R. 770; Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307; Boucher v. The King, 1950 CanLII 2 (SCC), [1951] S.C.R. 265; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Debs v. United States, 249 U.S. 211 (1919); Schenck v. United States, 249 U.S. 47 (1919); Whitney v. California, 274 U.S. 357 (1927); Dennis v. United States, 341 U.S. 494 (1951); Beauharnais v. Illinois, 343 U.S. 250 (1952); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Collin v. Smith, 578 F.2d 1197 (1978), certiorari denied, 439 U.S. 916 (1978); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (1985); Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972); Boos v. Barry, 108 S. Ct. 1157 (1988); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187; Eur. Court H. R., Handyside case, Judgment of 7 December 1976, Series A No. 24; Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), decision reported in part at (1983), 5 C.H.R.R. D/2097; R. v. Carrier (1951), 1951 CanLII 387 (QC CQ), 104 C.C.C. 75; R. v. Zundel (1987), 1987 CanLII 121 (ON CA), 58 O.R. (2d) 129; Saskatchewan Human Rights Commission v. Waldo (1984), 5 C.H.R.R. D/2074; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326; R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369; Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 S.C.R. 914; R. v. Schwartz, 1988 CanLII 11 (SCC), [1988] 2 S.C.R. 443; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; R. v. Andrews (1988), 1988 CanLII 200 (ON CA), 65 O.R. (2d) 161, aff'd [1990] 3 S.C.R. 000; Re Warren and Chapman (1984), 1984 CanLII 2930 (MB QB), 11 D.L.R. (4th) 474; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000; Saskatchewan (Human Rights Commission) v. Engineering Students' Society (1989), 1989 CanLII 286 (SK CA), 56 D.L.R. (4th) 604; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Statutes and Regulations Cited

Canadian Bill of Rights, S.C. 1960, c. 44 [reprinted R.S.C., 1985, App. III], preamble, s. 1(d).

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8, 11(d), 15, 16 to 23, 25, 27, 28, 29.

Canadian Human Rights Act, S.C. 1976‑77, c. 33 [now R.S.C., 1985, c. H-6], s. 13.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 2, 181, 298, 300, 318(4), 319 [previously R.S.C. 1970, c. C‑34, s. 281.2 (en. 1st Supp., c. 11, s. 1)].

Customs Tariff, S.C. 1987, c. 49, s. 114 and Schedule VII, Code 9956(b).

Defamation Act, R.S.M. 1987, c. D20, s. 19(1).

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), Art. 10.

International Convention on the Elimination of All Forms of Racial Discrimination, Can. T.S. 1970 No. 28, Art. 4.

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), Arts. 19, 20.

Libel Act, R.S.M. 1913, c. 113, s. 13A [ad. 1934, c. 23, s. 1].

Penal Code (India), ss. 153-A, 153-B.

Penal Code (Netherlands), ss. 137c, 137d, 137e.

Penal Code (Sweden), c. 16, s. 8.

Public Order Act 1986 (U.K.), 1986, c. 64, ss. 17 to 23.

Race Relations Act 1971 (N.Z.), No. 150, s. 25.

Racial Discrimination Act, 1944, S.O. 1944, c. 51, s. 1.

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 14.

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Holdsworth, Sir William. A History of English Law, vol. III, 5th ed. London: Methuen & Co., 1942.

Horowitz, Irving Louis. "First Amendment Blues: On Downs, Nazis in Skokie", [1986] Am. B. Found. Res. J. 535.

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James McCormick Mitchell Lecture. "Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation" (1988-89), 37 Buffalo L. Rev. 337.

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Lerner, Natan. The U.N. Convention on the Elimination of all Forms of Racial Discrimination. Rockville, Maryland: Sijthoff & Noordhoff, 1980.

MacKay, A. Wayne. "Freedom of Expression: Is it All Just Talk?" (1989), 68 Can. Bar Rev. 713.

Magnet, Joseph Eliot. "Multiculturalism and Collective Rights: Approaches to Section 27". In Gérald‑A. Beaudoin and Ed Ratushny eds., The Canadian Charter of Rights and Freedoms. Toronto: Carswells, 1989, 739.

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APPEAL from a judgment of the Alberta Court of Appeal (1988), 1988 ABCA 234 (CanLII), 60 Alta. L.R. (2d) 1, 87 A.R. 177, 43 C.C.C. (3d) 150, 65 C.R. (3d) 289, 39 C.R.R. 5, [1988] 5 W.W.R. 211, allowing the accused's appeal from his conviction on a charge of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code. Appeal allowed, La Forest, Sopinka and McLachlin JJ. dissenting.

Bruce R. Fraser, Q.C., for the appellant.

Douglas H. Christie, for the respondent.

D. Martin Low, Q.C., Stephen B. Sharzer and Irit Weiser, for the intervener the Attorney General of Canada.

Gregory J. Fitch, for the intervener the Attorney General for Ontario.

Jean Bouchard and Marise Visocchi, for the intervener the Attorney General of Quebec.

Bruce Judah, for the internener the Attorney General for New Brunswick.

Aaron Berg and Deborah Carlson, for the intervener the Attorney General of Manitoba.

John I. Laskin, for the intervener the Canadian Jewish Congress.

Mark J. Sandler, for the intervener the League for Human Rights of B'nai Brith, Canada.

Joseph Nuss, Q.C., Irwin Cotler and Ann Crawford, for the intervener Interamicus.

Kathleen Mahoney and Linda A. Taylor, for the intervener the Women's Legal Education and Action Fund.

Marc Rosenberg, for the intervener the Canadian Civil Liberties Association.

//Dickson C.J.//

The judgment of Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier was delivered by

DICKSON C.J. -- This appeal was heard in conjunction with the appeals in R. v. Andrews, [1990] 3 S.C.R. 000, and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 000. Along with Andrews it raises a delicate and highly controversial issue as to the constitutional validity of s. 319(2) of the Criminal Code, R.S.C., 1985, c. C-46, a legislative provision which prohibits the wilful promotion of hatred, other than in private conversation, towards any section of the public distinguished by colour, race, religion or ethnic origin. In particular, the Court must decide whether this section infringes the guarantee of freedom of expression found in s. 2(b) of the Canadian Charter of Rights and Freedoms in a manner that cannot be justified under s. 1 of the Charter. A secondary issue arises as to whether the presumption of innocence protected in the Charter's s. 11(d) is unjustifiably breached by reason of s. 319(3)(a) of the Code, which affords a defence of "truth" to the wilful promotion of hatred, but only where the accused proves the truth of the communicated statements on the balance of probabilities.

I. Facts

Mr. James Keegstra was a high school teacher in Eckville, Alberta from the early 1970s until his dismissal in 1982. In 1984 Mr. Keegstra was charged under s. 319(2) (then s. 281.2(2)) of the Criminal Code with unlawfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students. He was convicted by a jury in a trial before McKenzie J. of the Alberta Court of Queen's Bench.

Mr. Keegstra's teachings attributed various evil qualities to Jews. He thus described Jews to his pupils as "treacherous", "subversive", "sadistic", "money-loving", "power hungry" and "child killers". He taught his classes that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews "created the Holocaust to gain sympathy" and, in contrast to the open and honest Christians, were said to be deceptive, secretive and inherently evil. Mr. Keegstra expected his students to reproduce his teachings in class and on exams. If they failed to do so, their marks suffered.

Prior to his trial, Mr. Keegstra applied to the Court of Queen's Bench in Alberta for an order quashing the charge on a number of grounds, the primary one being that s. 319(2) of the Criminal Code unjustifiably infringed his freedom of expression as guaranteed by s. 2(b) of the Charter. Among the other grounds of appeal was the allegation that the defence of truth found in s. 319(3)(a) of the Code violates the Charter's presumption of innocence. The application was dismissed by Quigley J., and Mr. Keegstra was thereafter tried and convicted. He then appealed his conviction to the Alberta Court of Appeal, raising the same Charter issues. The Court of Appeal unanimously accepted his argument, and it is from this judgment that the Crown appeals.

The Attorneys General of Canada, Quebec, Ontario, Manitoba and New Brunswick, the Canadian Jewish Congress, Interamicus, the League for Human Rights of B'nai Brith, Canada, and the Women's Legal Education and Action Fund (L.E.A.F.) have intervened in this appeal in support of the Crown. The Canadian Civil Liberties Association has intervened in support of striking down the impugned legislation.

II. Issues

The following constitutional questions were stated on August 1, 1989:

1.Is s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms?

2.If s. 281.2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?

3.Is s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) an infringement of the right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms?

4.If s. 281.2(3)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 (now s. 319(3)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46) is an infringement of s. 11(d) of the Canadian Charter of Rights and Freedoms, can it be upheld under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?

III. Relevant Statutory and Constitutional Provisions

The relevant legislative and Charter provisions are set out below:

Criminal Code

319. . . .

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b)an offence punishable on summary conviction.

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.

. . .

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

(7) In this section,

"communicating" includes communicating by telephone, broadcasting or other audible or visible means;

"identifiable group" has the same meaning as in section 318;

"public place" includes any place to which the public have access as of right or by invitation, express or implied;

"statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

318. . . .

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin.

Canadian Bill of Rights, R.S.C., 1985, App. III

The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that ackowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;

Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;

And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:

Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

. . .

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, . . .

(d) freedom of speech;

Canadian Charter of Rights and Freedoms

2. Everyone has the following fundamental freedoms:

. . .

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

11. Any person charged with an offence has the right

. . .

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national and ethnic origin, colour, religion, sex, age or mental or physical disability.

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

IV. Judgments of the Alberta Courts

A. Alberta Court of Queen's Bench (1984), 1984 CanLII 1313 (AB QB), 19 C.C.C. (3d) 254

In the Court of Queen's Bench, only the s. 2(b) issue was given substantial consideration, the argument on s. 11(d) not being entertained for lack of proper notice to the Crown. In dismissing Mr. Keegstra's s. 2(b) submission, Quigley J. was of the view that there exists a discernible Canadian concept of freedom of expression, a concept emanating from four principles found in the preamble to the Canadian Bill of Rights and the introductory words to s. 1 of the Bill, namely, i) an acknowledgment of the supremacy of God; ii) the dignity and worth of the human person; iii) respect for moral and spiritual values; and iv) the rule of law. Quigley J. saw the affirmation of these principles in s. 15 of the Charter, that section enshrining as it does the dignity and worth of every individual (p. 268). Of further interpretive use was the Charter's s. 27, which he felt required a view of freedom of expression which is compatible with the preservation and enhancement of Canada's multicultural heritage (p. 268).

Using the principles provided by the Canadian Bill of Rights and affirmed in ss. 15 and 27 of the Charter, Quigley J. observed that the wilful promotion of hatred against a section of the Canadian public distinguished by colour, race, religion or ethnic origin is antithetical to the dignity and worth of the members of an identifiable group. As such, it negates their rights and freedoms, in particular denying them the right to the equal protection and benefit of the law without discrimination. Quigley J. thus decided that s. 319(2) does not infringe s. 2(b) of the Charter, stating (at p. 268):

. . . it is my opinion that s. 281.2(2) [now s. 319(2)] of the Code cannot rationally be considered to be an infringement which limits "freedom of expression", but on the contrary it is a safeguard which promotes it. The protection afforded by the proscription tends to banish the apprehension which might otherwise inhibit certain segments of our society from freely expressing themselves upon the whole spectrum of topics, whether social, economic, scientific, political, religious, or spiritual in nature. The unfettered right to express divergent opinions on these topics is the kind of freedom of expression the Charter protects.

In the event that he was wrong in this conclusion, Quigley J. went on to ask whether s. 319(2) was justified under s. 1 of the Charter. He noted that persons maligned by hate propaganda may respond aggressively and be stripped of their sense of personal dignity and self-worth, while those whom the hate-monger seeks to influence are harmed because "it is beyond doubt that breeding hate is detrimental to society for psychological and social reasons and that it can easily create hostility and aggression which leads to violence" (p. 273). In light of these harms, Quigley J. saw s. 319(2) as a rational means of preventing real and serious damage to both individuals and society generally. Moreover, he felt that the various restrictions and defences built into s. 319(2) ensure that it has "a very minimal effect on the over-all right of freedom of expression" (p. 274). In Quigley J.'s view, the balance struck between free expression and the broader interests of social cohesion and the common good thus justified s. 319(2) as a reasonable limit to s. 2(b) under s. 1.

B. Alberta Court of Appeal (per Kerans J.A., Stevenson and Irving JJ.A. concurring) (1988), 1988 ABCA 234 (CanLII), 43 C.C.C. (3d) 150

In the Alberta Court of Appeal, two Charter provisions were invoked by Mr. Keegstra. First, s. 2(b) was used as it had been in the pre-trial application before the Court of Queen's Bench, and second, the presumption of innocence protected in s. 11(d) was used to attack the reverse onus placed upon an accused by the defence of truth in s. 319(3)(a). On both issues Kerans J.A., writing for a unanimous court, found that the Charter had been violated. As a result, the appeal was allowed and the impugned provision struck down, and it became unnecessary to deal with a number of other grounds of appeal raised by Mr. Keegstra.

Kerans J.A. began by noting that under s. 319(3)(a) an accused could be convicted of wilfully promoting hatred upon failure to prove on a balance of probabilities the truth of his or her statements. In this way, the onus of proving innocence was on the accused, and s. 319(3)(a) therefore violated s. 11(d). Under s. 1, Kerans J.A. could only envision one justification for a reverse onus, namely "where the inference commanded by the statutory presumption is so persuasive that only a perverse jury would have a doubt" (p. 160). In his opinion, statements intended to promote hatred could quite conceivably be true, and he consequently ruled that the reverse onus in s. 319(3)(a) was not saved under s. 1.

Turning next to the freedom of expression issue, Kerans J.A. was willing to accept that knowingly false expression was not covered by s. 2(b). Section 319(2) extended beyond knowingly false communications, however, covering all falsehoods, including those innocently and negligently made. The relevant question under s. 2(b) was therefore whether falsehoods unknowingly made were protected by the Charter. Invoking John Stuart Mill's "marketplace of ideas", Kerans J.A. decided in the affirmative, stating that "s. 2(b) should be understood as protecting both innocent error and imprudent speech" (p. 164). As s. 319(2) did neither, he held that it infringes s. 2(b) of the Charter.

Moving on to the s. 1 analysis, Kerans J.A. first considered whether the challenged legislation bore a rational relationship to a valid legislative objective. He accepted that preventing harm to the reputation and psychological well-being of target-group members was a valid s. 1 objective, stating that the making of unjust or capricious distinctions is "an attack on the dignity of the victim, and can result in a debilitating sense of alienation from society" (p. 169). Kerans J.A. nevertheless saw a difference between pain suffered by the target of isolated abuse and the crushing effect of systemic discrimination. He remarked that feelings of outrage and frustration caused by name-calling may be bearable if the abuse is rejected by the community as a whole, while in contrast name-calling becomes unbearable when, "it indeed cools one's friends and heats one's enemies" (p. 169). Consequently, he viewed injury stemming from hate propaganda as serious enough to require the sanction of the criminal law only where people actually hate a group as a result of abuse.

The protection of individuals from actual hatred being alone sufficient reason to limit imprudent speech, Kerans J.A. found that s. 319(2) fails the proportionality test through overbreadth, permitting as it does the conviction of a person who merely intends to cause hatred. In coming to this result, Kerans J.A. viewed as insufficient, safeguards said to prevent the use of s. 319(2) to prosecute "harmless cranks" or persons in the public eye who utter an "unfortunate" remark that is picked up by the media. He also dismissed the Crown's contention that it would be impossible to prove actual harm from a particular hate-promoting communication, and refused to see prosecutorial discretion in s. 319(6) as a sufficient antidote to the offence's overbreadth. Finally, he did not view ss. 15 and 27 of the Charter as working to justify s. 319(2) under s. 1. In Kerans J.A.'s opinion, these Charter provisions do not forbid Canadians from criticizing the values of equality and multiculturalism, and while accepting that no Canadian should be asked to suffer simply because of his or her racial or ethnic heritage, he concluded that the challenged law "catches more than that" (p. 178). In the result, he found that the impugned legislative provision was not saved under s. 1.

V. The History of Hate Propaganda Crimes in Canada

The history of attempts to prevent the propagation of scurrilous statements about particular groups is, not surprisingly, extremely old. The earliest instance where such expression was made criminal occurred in 1275, when the offence of De Scandalis Magnatum was created, prohibiting "any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm". As Sir William Holdsworth noted, the aim of the statute was to prevent false statements which, in a society dominated by extremely powerful landowners, could threaten the security of the state (see A History of English Law (5th ed. 1942), vol. III, at p. 409).

De Scandalis Magnatum was rarely employed, and was abolished in England in 1887, but its legacy survives in s. 181 of our Criminal Code, which makes it an offence to spread knowingly false news that is likely to cause injury or mischief to a public interest. Section 181 does not on its face address the problem of "hate propaganda", a term which I use for convenience to denote expression intended or likely to create or circulate extreme feelings of opprobrium and enmity against a racial or religious group, but it has been used recently to prosecute an individual for the distribution of anti-semitic material (see R. v. Zundel (1987), 1987 CanLII 121 (ON CA), 58 O.R. (2d) 129 (C.A.)). In the more distant past, a forerunner of s. 181 was employed against the disseminator of a pamphlet decrying the plight of Jehovah's Witnesses in Quebec. This earlier case, R. v. Carrier (1951), 1951 CanLII 387 (QC CQ), 104 C.C.C. 75 (Que. K.B.), interpreted the provision narrowly, holding that the requirement of injury or the likelihood of injury to the public interest was not satisfied by simply a desire to fan hatred and ill-will between different groups, but rather needed something more in the nature of an intention to disobey openly or to act violently against the established authority.

Prior to 1970, s. 181 was the only provision of the Criminal Code with links (albeit mainly historical) to an offence of group defamation. Our common law has long seen defamation as a tortious action, but only where a litigant can show that reputation has been damaged by offending statements directed towards him or her as an individual. Similarly, until the amendments creating s. 319(2), Canadian criminal law made defamation an offence only in the case of attacks upon a person, as is evident from the combined effect of what are now ss. 298 and 300 of the Criminal Code. The scope of "person" set out in s. 2 of the Code extends somewhat beyond the individual, covering additionally public bodies, corporations, societies and companies, but groups having common characteristics such as race, religion, colour and ethnic origin are not included in the definition.

Section 300 was not, before 1970, the only Criminal Code offence prohibiting a type of libel. There also existed the crime of seditious libel, now found in s. 59, prohibiting the speaking or publishing of seditious words. This offence required the existence of a "seditious intention", a state of mind which, without limiting the scope of the phrase, was statutorily presumed to be present in those advocating the unlawful use of force as a means of accomplishing a governmental change within Canada. In Boucher v. The King, 1950 CanLII 2 (SCC), [1951] S.C.R. 265, this Court interpreted "seditious intention" restrictively, however, finding the term to require proof of an intention to incite acts of violence or public disorder. The decision in Boucher has been long regarded as a strong defence of the merits of freedom of expression. Not surprisingly, for this reason it was relied upon in Carrier for the narrow interpretation of the offence of spreading false news.

While the history of attempts to prosecute criminally the libel of groups is lengthy, the Criminal Code provisions discussed so far do not focus specifically upon expression propagated with the intent of causing hatred against racial, ethnic or religious groups. Even before the Second World War, however, fears began to surface concerning the inadequacy of Canadian criminal law in this regard. In the 1930s, for example, Manitoba passed a statute combatting a perceived rise in the dissemination of Nazi propaganda (The Libel Act, R.S.M. 1913, c. 113, s. 13A (added S.M. 1934, c. 23, s. 1), now The Defamation Act, R.S.M. 1987, c. D20, s. 19(1)). Following the Second World War and revelation of the Holocaust, in Canada and throughout the world a desire grew to protect human rights, and especially to guard against discrimination. Internationally, this desire led to the landmark Universal Declaration of Human Rights in 1948, and, with reference to hate propaganda, was eventually manifested in two international human rights instruments. In Canada, the post-war mood saw an attempt to include anti-hate propaganda provisions in the 1953 revision of the Criminal Code, but most influential in changing the criminal law in order to prohibit hate propaganda was the appointment by Justice Minister Guy Favreau of a special committee to study problems associated with the spread of hate propaganda in Canada.

The Special Committee on Hate Propaganda in Canada, usually referred to as the Cohen Committee, was composed of the following members: Dean Maxwell Cohen, Q.C., Dean of the Faculty of Law, McGill University, chair; Dr. J.A. Corry, Principal, Queen's University; L'Abbé Gérard Dion, Faculty of Social Sciences, Laval University; Mr. Saul Hayes, Q.C., Executive Vice-President, Canadian Jewish Congress; Professor Mark R. MacGuigan, Associate Professor of Law, University of Toronto; Mr. Shane MacKay, Executive Editor, Winnipeg Free Press; and Professor Pierre-E. Trudeau, Associate Professor of Law, University of Montreal. This was a particularly strong Committee, and in 1966 it released the unanimous Report of the Special Committee on Hate Propaganda in Canada.

The tenor of the Report is reflected in the opening paragraph of its Preface, which reads:

This Report is a study in the power of words to maim, and what it is that a civilized society can do about it. Not every abuse of human communication can or should be controlled by law or custom. But every society from time to time draws lines at the point where the intolerable and the impermissible coincide. In a free society such as our own, where the privilege of speech can induce ideas that may change the very order itself, there is a bias weighted heavily in favour of the maximum of rhetoric whatever the cost and consequences. But that bias stops this side of injury to the community itself and to individual members or identifiable groups innocently caught in verbal cross-fire that goes beyond legitimate debate.

In keeping with these remarks, the recurrent theme running throughout the Report is the need to prevent the dissemination of hate propaganda without unduly infringing the freedom of expression, a theme which led the Committee to recommend a number of amendments to the Criminal Code. These amendments were made, essentially along the lines suggested by the Committee, and covered the advocation of genocide (s. 318), the public incitement of hatred likely to lead to a breach of peace (s. 319(1)) and the provision challenged in this appeal and presently found in s. 319(2) of the Code, namely, the wilful promotion of hatred.

VI. Section 2(b) of the Charter -- Freedom of Expression

Having briefly set out the history of attempts to prohibit hate propaganda, I can now address the constitutional questions arising for decision in this appeal. The first of these concerns whether the Charter guarantee of freedom of expression is infringed by s. 319(2) of the Criminal Code. In other words, does the coverage of s. 2(b) extend to the public and wilful promotion of hatred against an identifiable group. Before looking to the specific facts of this appeal, however, I would like to comment upon the nature of the s. 2(b) guarantee. Obviously, one's conception of the freedom of expression provides a crucial backdrop to any s. 2(b) inquiry; the values promoted by the freedom help not only to define the ambit of s. 2(b), but also come to the forefront when discussing how competing interests might co-exist with the freedom under s. 1 of the Charter.

In the recent past, this Court has had the opportunity to hear and decide a number of freedom of expression cases, among them RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123; and Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232. Together, the judgments in these cases provide guidance as to the values informing the freedom of expression, and additionally indicate the relationship between ss. 2(b) and 1 of the Charter.

That the freedom to express oneself openly and fully is of crucial importance in a free and democratic society was recognized by Canadian courts prior to the enactment of the Charter. The treatment of freedom of expression by this Court in both division of powers and other cases was examined in Dolphin Delivery Ltd., supra, at pp. 583-88, and it was noted that well before the advent of the Charter -- before even the Canadian Bill of Rights was passed by Parliament in 1960, S.C. 1960, c. 44 -- freedom of expression was seen as an essential value of Canadian parliamentary democracy. This freedom was thus protected by the Canadian judiciary to the extent possible before its entrenchment in the Charter, and occasionally even appeared to take on the guise of a constitutionally protected freedom (see, e.g., Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, per Duff C.J., at pp. 132-33; and Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285, per Abbott J., at p. 326).

Without explicit protection under a written constitution, however, the freedom of expression was not always accorded careful consideration in pre-Charter cases (see Clare Beckton, "Freedom of Expression" in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 195, at pp. 197-98). Moreover, pre-Charter jurisprudence used freedom of expression primarily in relation to political expression, a context which restricted somewhat the content of the freedom and led this Court to remark in Ford, supra. at p. 764:

The pre-Charter jurisprudence emphasized the importance of political expression because it was a challenge to that form of expression that most often arose under the division of powers and the "implied bill of rights", where freedom of political expression could be related to the maintenance and operation of the institutions of democratic government. But political expression is only one form of the great range of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society.

While the pre-Charter era saw a role for the freedom of expression, then, with the Charter came not only its increased importance, but also a more careful and generous study of the values informing the freedom.

As is evident from the quotation just given, the reach of s. 2(b) is potentially very wide, expression being deserving of constitutional protection if "it serves individual and societal values in a free and democratic society". In subsequent cases, the Court has not lost sight of this broad view of the values underlying the freedom of expression, though the majority decision in Irwin Toy perhaps goes further towards stressing as primary the "democratic commitment" said to delineate the protected sphere of liberty (p. 971). Moreover, the Court has attempted to articulate more precisely some of the convictions fueling the freedom of expression, these being summarized in Irwin Toy (at p. 976) as follows: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed.

Although Ford commented upon the values generally seen to support the freedom of expression, the decision was also sensitive of the need to consider these values within the textual framework of the Charter. Consequently, the Court stated at pp. 765-66 that,

While . . . attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful in emphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions of whether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and the question whether that form or act of expression, in the final analysis, deserves protection from interference under the structure of the Canadian Charter and the Quebec Charter. These are two distinct questions and call for two distinct analytical processes.

It is the presence of s. 1 which makes necessary this bifurcated approach to Canadian freedom of expression cases. Indeed, the application of this approach in Ford in part permitted the Court to give a large and liberal interpretation to s. 2(b), on the facts of the case leading to the inclusion of commercial expression within its ambit, and to state that the weighing of competing values would "in most instances" take place in s. 1 (p. 766).

Irwin Toy can be seen as at once clarifying the relationship between ss. 2(b) and 1 in freedom of expression cases and reaffirming and strengthening the large and liberal interpretation given the freedom in s. 2(b) by the Court in Ford. These aspects of the decision flow largely from a two-step analysis used in determining whether s. 2(b) has been infringed, an approach affirmed by this Court in subsequent cases, for example Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, and Royal College of Dental Surgeons, supra.

The first step in the Irwin Toy analysis involves asking whether the activity of the litigant who alleges an infringement of the freedom of expression falls within the protected s. 2(b) sphere. In outlining a broad, inclusive approach to answering this question, the following was said (at p. 968):

"Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

Apart from rare cases where expression is communicated in a physically violent form, the Court thus viewed the fundamental nature of the freedom of expression as ensuring that "if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee" (p. 969). In other words, the term "expression" as used in s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed (Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, at p. 1181, per Lamer J.).

The second step in the analysis outlined in Irwin Toy is to determine whether the purpose of the impugned government action is to restrict freedom of expression. The guarantee of freedom of expression will necessarily be infringed by government action having such a purpose. If, however, it is the effect of the action, rather than the purpose, that restricts an activity, s. 2(b) is not brought into play unless it can be demonstrated by the party alleging an infringement that the activity supports rather than undermines the principles and values upon which freedom of expression is based.

Having reviewed the Irwin Toy test, it remains to determine whether the impugned legislation in this appeal -- s. 319(2) of the Criminal Code -- infringes the freedom of expression guarantee of s. 2(b). Communications which wilfully promote hatred against an identifiable group without doubt convey a meaning, and are intended to do so by those who make them. Because Irwin Toy stresses that the type of meaning conveyed is irrelevant to the question of whether s. 2(b) is infringed, that the expression covered by s. 319(2) is invidious and obnoxious is beside the point. It is enough that those who publicly and wilfully promote hatred convey or attempt to convey a meaning, and it must therefore be concluded that the first step of the Irwin Toy test is satisfied.

Moving to the second stage of the s. 2(b) inquiry, one notes that the prohibition in s. 319(2) aims directly at words -- in this appeal, Mr. Keegstra's teachings -- that have as their content and objective the promotion of racial or religious hatred. The purpose of s. 319(2) can consequently be formulated as follows: to restrict the content of expression by singling out particular meanings that are not to be conveyed. Section 319(2) therefore overtly seeks to prevent the communication of expression, and hence meets the second requirement of the Irwin Toy test.

In my view, through s. 319(2) Parliament seeks to prohibit communications which convey meaning, namely, those communications which are intended to promote hatred against identifiable groups. I thus find s. 319(2) to constitute an infringement of the freedom of expression guaranteed by s. 2(b) of the Charter. Before moving on to see whether the impugned provision is nonetheless justified under s. 1, however, I wish to canvas two arguments made in favour of the position that communications intended to promote hatred do not fall within the ambit of s. 2(b). The first of these arguments concerns an exception mentioned in Irwin Toy concerning expression manifested in a violent form. The second relates to the impact of other sections of the Charter and international agreements in interpreting the scope of the freedom of expression guarantee.

Beginning with the suggestion that expression covered by s. 319(2) falls within an exception articulated in Irwin Toy, it was argued before this Court that the wilful promotion of hatred is an activity the form and consequences of which are analogous to those associated with violence or threats of violence. This argument contends that Supreme Court of Canada precedent excludes violence and threats of violence from the ambit of s. 2(b), and that the reason for such exclusion must lie in the fact that these forms of expression are inimical to the values supporting freedom of speech. Indeed, in support of this view it was pointed out to us that the Court in Irwin Toy stated that "freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure" (p. 970). Accordingly, we were urged to find that hate propaganda of the type caught by s. 319(2), insofar as it imperils the ability of target group members themselves to convey thoughts and feelings in non-violent ways without fear of censure, is analogous to violence and threats of violence and hence does not fall within s. 2(b).

The proposition in Irwin Toy that violent expression is not afforded protection under s. 2(b) has its origin in a comment made by McIntyre J. in Dolphin Delivery Ltd., in which he stated that the freedom of expression guaranteed picketers would not extend to protect violence or threats of violence (p. 588). Restricting s. 2(b) in this manner has also been mentioned in more recent Supreme Court of Canada decisions, in particular by Lamer J. in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) and by a unanimous Court in Royal College of Dental Surgeons. It should be emphasized, however, that no decision of this Court has rested on the notion that expressive conduct is excluded from s. 2(b) where it involves violence.

Turning specifically to the proposition that hate propaganda should be excluded from the coverage of s. 2(b), I begin by stating that the communications restricted by s. 319(2) cannot be considered as violence, which on a reading of Irwin Toy I find to refer to expression communicated directly through physical harm. Nor do I find hate propaganda to be analogous to violence, and through this route exclude it from the protection of the guarantee of freedom of expression. As I have explained, the starting proposition in Irwin Toy is that all activities conveying or attempting to convey meaning are considered expression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision. Stated at its highest, an exception has been suggested where meaning is communicated directly via physical violence, the extreme repugnance of this form to free expression values justifying such an extraordinary step. Section 319(2) of the Criminal Code prohibits the communication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. For this reason, I am of the view that hate propaganda is to be categorized as expression so as to bring it within the coverage of s. 2(b).

As for threats of violence, Irwin Toy spoke only of restricting s. 2(b) to certain forms of expression, stating at p. 970 that,

[w]hile the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke freedom of expression in justification of the form of expression he has chosen. [Emphasis in original.]

While the line between form and content is not always easily drawn, in my opinion threats of violence can only be so classified by reference to the content of their meaning. As such, they do not fall within the exception spoken of in Irwin Toy, and their suppression must be justified under s. 1. As I do not find threats of violence to be excluded from the definition of expression envisioned by s. 2(b), it is unnecessary to determine whether the threatening aspects of hate propaganda can be seen as threats of violence, or analogous to such threats, so as to deny it protection under s. 2(b).

The second matter which I wish to address before leaving the s. 2(b) inquiry concerns the relevance of other Charter provisions and international agreements to which Canada is a party in interpreting the coverage of the freedom of expression guarantee. It has been argued in support of excluding hate propaganda from the coverage of s. 2(b) that the use of ss. 15 and 27 of the Charter -- dealing respectively with equality and multiculturalism -- and Canada's acceptance of international agreements requiring the prohibition of racist statements make s. 319(2) incompatible with even a large and liberal definition of the freedom (see, e.g., I. Cotler, "Hate Literature", in R. S. Abella and M. L. Rothman, eds., Justice Beyond Orwell (1985), 117, at pp. 121-22). The general tenor of this argument is that these interpretative aids inextricably infuse each constitutional guarantee with values supporting equal societal participation and the security and dignity of all persons. Consequently, it is said that s. 2(b) must be curtailed so as not to extend to communications which seriously undermine the equality, security and dignity of others.

Because I will deal extensively with the impact of various Charter provisions and international agreements when considering whether s. 319(2) is a justifiable limit under s. 1, I will keep my comments here to a minimum. Suffice it to say that I agree with the general approach of Wilson J. in Edmonton Journal, supra, where she speaks of the danger of balancing competing values without the benefit of a context. This approach does not logically preclude the presence of balancing within s. 2(b) -- one could avoid the dangers of an overly abstract analysis simply by making sure that the circumstances surrounding both the use of the freedom and the legislative limit were carefully considered. I believe, however, that s. 1 of the Charter is especially well suited to the task of balancing, and consider this Court's previous freedom of expression decisions to support this belief. It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1.

I thus conclude on the issue of s. 2(b) by finding that s. 319(2) of the Criminal Code constitutes an infringement of the Charter guarantee of freedom of expression, and turn to examine whether such an infringement is justifiable under s. 1 as a reasonable limit in a free and democratic society.

VII. Section 1 Analysis of Section 319(2)

A. General Approach to Section 1

Though the language of s. 1 appears earlier in these reasons, it is appropriate to repeat its words:

In R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, this Court offered a course of analysis to be employed in determining whether a limit on a right or freedom can be demonstrably justified in a free and democratic society. Under the approach in Oakes, it must first be established that impugned state action has an objective of pressing and substantial concern in a free and democratic society. Only such an objective is of sufficient stature to warrant overriding a constitutionally protected right or freedom (p. 138). The second feature of the Oakes test involves assessing the proportionality between the objective and the impugned measure. The inquiry as to proportionality attempts to guide the balancing of individual and group interests protected in s. 1, and in Oakes was broken down into the following three segments (at p. 139):

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question. . . . Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

The analytical framework of Oakes has been continually reaffirmed by this Court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body of our nation's constitutional law it plays an immeasurably richer role, one of great magnitude and sophistication. Before examining the specific components of the Oakes approach as they relate to this appeal, I therefore wish to comment more generally upon the role of s. 1.

In the words of s. 1 are brought together the fundamental values and aspirations of Canadian society. As this Court has said before, the premier article of the Charter has a dual function, operating both to activate Charter rights and freedoms and to permit such reasonable limits as a free and democratic society may have occasion to place upon them (Oakes, at pp. 133-34). What seems to me to be of significance in this dual function is the commonality that links the guarantee of rights and freedoms to their limitation. This commonality lies in the phrase "free and democratic society". As was stated by the majority in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1056:

The underlying values of a free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights.

Obviously, a practical application of s. 1 requires more than an incantation of the words "free and democratic society". These words require some definition, an elucidation as to the values that they invoke. To a large extent, a free and democratic society embraces the very values and principles which Canadians have sought to protect and further by entrenching specific rights and freedoms in the Constitution, although the balancing exercise in s. 1 is not restricted to values expressly set out in the Charter (Slaight, supra, at p. 1056). With this guideline in mind, in Oakes I commented upon some of the ideals that inform our understanding of a free and democratic society, saying (at p. 136):

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case.

It is important not to lose sight of factual circumstances in undertaking a s. 1 analysis, for these shape a court's view of both the right or freedom at stake and the limit proposed by the state; neither can be surveyed in the abstract. As Wilson J. said in Edmonton Journal, supra, referring to what she termed the "contextual approach" to Charter interpretation (at pp. 1355-56):

. . . a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1).

Though Wilson J. was speaking with reference to the task of balancing enumerated rights and freedoms, I see no reason why her view should not apply to all values associated with a free and democratic society. Clearly, the proper judicial perspective under s. 1 must be derived from an awareness of the synergetic relation between two elements: the values underlying the Charter and the circumstances of the particular case.

From the discussion so far, I hope it is clear that a rigid or formalistic approach to the application of s. 1 must be avoided. The ability to use s. 1 as a gauge which is sensitive to the values and circumstances particular to an appeal has been identified as vital in past cases, and La Forest J. admirably described the essence of this flexible approach in United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, at pp. 1489-90:

In the performance of the balancing task under s. 1, it seems to me, a mechanistic approach must be avoided. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature.

See also R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284, per La Forest J., at p. 300; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, per Dickson C.J., at pp. 768-69; and Irwin Toy, supra, per the majority, at pp. 989-90. The sentiments of La Forest J. correctly suggest that the application of the Oakes approach will vary depending on the circumstances of the case, including the nature of the interests at stake.

B. The Use of American Constitutional Jurisprudence

Having discussed the unique and unifying role of s. 1, I think it appropriate to address a tangential matter, yet one nonetheless crucial to the disposition of this appeal: the relationship between Canadian and American approaches to the constitutional protection of free expression, most notably in the realm of hate propaganda. Those who attack the constitutionality of s. 319(2) draw heavily on the tenor of First Amendment jurisprudence in weighing the competing freedoms and interests in this appeal, a reliance which is understandable given the prevalent opinion that the criminalization of hate propaganda violates the Bill of Rights (see, e.g., L. H. Tribe, American Constitutional Law (2nd ed. 1988), at p. 861, n. 2; K. Greenawalt, "Insults and Epithets: Are They Protected Speech?" (1990), 42 Rutgers L. Rev. 287, at p. 304). In response to the emphasis placed upon this jurisprudence, I find it helpful to summarize the American position and to determine the extent to which it should influence the s. 1 analysis in the circumstances of this appeal.

A myriad of sources -- both judicial and academic -- offer reviews of First Amendment jurisprudence as it pertains to hate propaganda. Central to most discussions is the 1952 case of Beauharnais v. Illinois, 343 U.S. 250, where the Supreme Court of the United States upheld as constitutional a criminal statute forbidding certain types of group defamation. Though never overruled, Beauharnais appears to have been weakened by later pronouncements of the Supreme Court (see, e.g., Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); and Cohen v. California, 403 U.S. 15 (1971)). The trend reflected in many of these pronouncements is to protect offensive, public invective as long as the speaker has not knowingly lied and there exists no clear and present danger of violence or insurrection.

In the wake of subsequent developments in the Supreme Court, on several occasions Beauharnais has been distinguished and doubted by lower courts (see, e.g., Anti-Defamation League of B'nai B'rith v. Federal Communications Commission, 403 F.2d 169 (D.C. Cir. 1968), at p. 174, n. 5; Tollett v. United States, 485 F.2d 1087 (8th Cir. 1973), at p. 1094, n. 14; American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), at pp. 331-32; and Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), at p. 863). Of the judgments expressing a shaken faith in Beauharnais, Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), certiorari denied, 439 U.S. 916 (1978), is of greatest relevance to this appeal. In Collin, the Court of Appeal for the Seventh Circuit invalidated a municipal ordinance prohibiting public demonstrations inciting "violence, hatred, abuse or hostility toward a person or group of persons by reason of reference to religious, racial, ethnic, national or regional affiliation" (p. 1199), and thereby allowed members of the American Nazi Party to march through Skokie, Illinois, home to a large number of Jewish Holocaust survivors (despite the ruling, however, no march was held in Skokie; I. Horowitz, "First Amendment Blues: On Downs, Nazis in Skokie", [1986] Am. B. Found. Res. J. 535, at p. 540).

The question that concerns us in this appeal is not, of course, what the law is or should be in the United States. But it is important to be explicit as to the reasons why or why not American experience may be useful in the s. 1 analysis of s. 319(2) of the Criminal Code. In the United States, a collection of fundamental rights has been constitutionally protected for over two hundred years. The resulting practical and theoretical experience is immense, and should not be overlooked by Canadian courts. On the other hand, we must examine American constitutional law with a critical eye, and in this respect La Forest J. has noted in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 639:

While it is natural and even desirable for Canadian courts to refer to American constitutional jurisprudence in seeking to elucidate the meaning of Charter guarantees that have counterparts in the United States Constitution, they should be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in very different circumstances ....

Canada and the United States are not alike in every way, nor have the documents entrenching human rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States.

Having examined the American cases relevant to First Amendment jurisprudence and legislation criminalizing hate propaganda, I would be adverse to following too closely the line of argument that would overrule Beauharnais on the ground that incursions placed upon free expression are only justified where there is a clear and present danger of imminent breach of peace. Equally, I am unwilling to embrace various categorizations and guiding rules generated by American law without careful consideration of their appropriateness to Canadian constitutional theory. Though I have found the American experience tremendously helpful in coming to my own conclusions regarding this appeal, and by no means reject the whole of the First Amendment doctrine, in a number of respects I am thus dubious as to the applicability of this doctrine in the context of a challenge to hate propaganda legislation.

First, it is not entirely clear that Beauharnais must conflict with existing First Amendment doctrine. Credible arguments have been made that later Supreme Court cases do not necessarily erode its legitimacy (see, e.g., K. Lasson, "Racial Defamation as Free Speech: Abusing the First Amendment" (1985), 17 Colum. Hum. Rts. L. Rev. 11). Indeed, there exists a growing body of academic writing in the United States which evinces a stronger focus upon the way in which hate propaganda can undermine the very values which free speech is said to protect. This body of writing is receptive to the idea that, were the issue addressed from this new perspective, First Amendment doctrine might be able to accommodate statutes prohibiting hate propaganda (see, e.g., R. Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling" (1982), 17 Harv. C.R.-C.L. L. Rev. 133; I. Horowitz, "Skokie, the ACLU and the Endurance of Democratic Theory" (1979), 43 Law & Contemp. Probs. 328; Lasson, op. cit., at pp. 20-30; M. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" (1989), 87 Mich. L. Rev. 2320, at p. 2348; "Doe v. University of Michigan: First Amendment -- Racist and Sexist Expression on Campus -- Court Strikes Down University Limits on Hate Speech" (1990), 103 Harv. L. Rev. 1397).

Second, the aspect of First Amendment doctrine most incompatible with s. 319(2), at least as that doctrine is described by those who would strike down the legislation, is its strong aversion to content-based regulation of expression. I am somewhat skeptical, however, as to whether this view of free speech in the United States is entirely accurate. Rather, in rejecting the extreme position that would provide an absolute guarantee of free speech in the Bill of Rights, the Supreme Court has developed a number of tests and theories by which protected speech can be identified and the legitimacy of government regulation assessed. Often required is a content-based categorization of the expression under examination. As an example, obscenity is not protected because of its content (see, e.g., Roth v. United States, 354 U.S. 476 (1957)) and laws proscribing child pornography have been scrutinized under a less than strict First Amendment standard even where they extend to expression beyond the realm of the obscene (see New York v. Ferber, 458 U.S. 747 (1982)). Similarly, the vigourous protection of free speech relaxes significantly when commercial expression is scrutinized (see, e.g., Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986)), and it is permissible to restrict government employees in their exercise of the right to engage in political activity (Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985)).

In short, a decision to place expressive activity in a category which either merits reduced protection or falls entirely outside of the First Amendment's ambit at least impliedly involves assessing the content of the activity in light of free speech values. As Professor F. Schauer has said, it is always necessary to examine the First Amendment value of the expression limited by state regulation ("The Aim and the Target in Free Speech Methodology" (1989), 83 Nw. U.L. Rev. 562, at p. 568). To recognize that content is often examined under the First Amendment is not to deny that content neutrality plays a real and important role in the American jurisprudence. Nonetheless, that the proscription against looking at the content of expression is not absolute, and that balancing is occasionally employed in First Amendment cases (see Professor T. A. Aleinikoff, "Constitutional Law in the Age of Balancing" (1987), 96 Yale L.J. 943, at pp. 966-68), reveals that even in the United States it is sometimes thought justifiable to restrict a particular message because of its meaning.

Third, applying the Charter to the legislation challenged in this appeal reveals important differences between Canadian and American constitutional perspectives. I have already discussed in some detail the special role of s. 1 in determining the protective scope of Charter rights and freedoms. Section 1 has no equivalent in the United States, a fact previously alluded to by this Court in selectively utilizing American constitutional jurisprudence (see, e.g., Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, per Lamer J., at p. 498). Of course, American experience should never be rejected simply because the Charter contains a balancing provision, for it is well known that American courts have fashioned compromises between conflicting interests despite what appears to be the absolute guarantee of constitutional rights. Where s. 1 operates to accentuate a uniquely Canadian vision of a free and democratic society, however, we must not hesitate to depart from the path taken in the United States. Far from requiring a less solicitous protection of Charter rights and freedoms, such independence of vision protects these rights and freedoms in a different way. As will be seen below, in my view the international commitment to eradicate hate propaganda and, most importantly, the special role given equality and multiculturalism in the Canadian Constitution necessitate a departure from the view, reasonably prevalent in America at present, that the suppression of hate propaganda is incompatible with the guarantee of free expression. (In support of this view, see the comments of Professors K. Mahoney and J. Cameron in "Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation" (1988-89), 37 Buffalo L. Rev. 337, beginning at pp. 344 and 353 respectively).

In sum, there is much to be learned from First Amendment jurisprudence with regard to freedom of expression and hate propaganda. It would be rash, however, to see First Amendment doctrine as demanding the striking down of s. 319(2). Not only are the precedents somewhat mixed, but the relaxation of the prohibition against content-based regulation of expression in certain areas indicates that American courts are not loath to permit the suppression of ideas in some circumstances. Most importantly, the nature of the s. 1 test as applied in the context of a challenge to s. 319(2) may well demand a perspective particular to Canadian constitutional jurisprudence when weighing competing interests. If values fundamental to the Canadian conception of a free and democratic society suggest an approach that denies hate propaganda the highest degree of constitutional protection, it is this approach which must be employed.

C. Objective of Section 319(2)

I now turn to the specific requirements of the Oakes approach in deciding whether the infringement of s. 2(b) occasioned by s. 319(2) is justifiable in a free and democratic society. According to Oakes, the first aspect of the s. 1 analysis is to examine the objective of the impugned legislation. Only if the objective relates to concerns which are pressing and substantial in a free and democratic society can the legislative limit on a right or freedom hope to be permissible under the Charter. In examining the objective of s. 319(2), I will begin by discussing the harm caused by hate propaganda as identified by the Cohen Committee and subsequent study groups, and then review in turn the impact upon this objective of international human rights instruments and ss. 15 and 27 of the Charter.

(i)Harm Caused by Expression Promoting the Hatred of Identifiable Groups

Looking to the legislation challenged in this appeal, one must ask whether the amount of hate propaganda in Canada causes sufficient harm to justify legislative intervention of some type. The Cohen Committee, speaking in 1965, found that the incidence of hate propaganda in Canada was not insignificant (at p. 24):

. . . there exists in Canada a small number of persons and a somewhat larger number of organizations, extremist in outlook and dedicated to the preaching and spreading of hatred and contempt against certain identifiable minority groups in Canada. It is easy to conclude that because the number of persons and organizations is not very large, they should not be taken too seriously. The Committee is of the opinion that this line of analysis is no longer tenable after what is known to have been the result of hate propaganda in other countries, particularly in the 1930's when such material and ideas played a significant role in the creation of a climate of malice, destructive to the central values of Judaic-Christian society, the values of our civilization. The Committee believes, therefore, that the actual and potential danger caused by present hate activities in Canada cannot be measured by statistics alone.

Even the statistics, however, are not unimpressive, because while activities have centered heavily in Ontario, they nevertheless have extended from Nova Scotia to British Columbia and minority groups in at least eight Provinces have been subjected to these vicious attacks.

In 1984, the House of Commons Special Committee on Participation of Visible Minorities in Canadian Society in its report, entitled Equality Now!, observed that increased immigration and periods of economic difficulty "have produced an atmosphere that may be ripe for racially motivated incidents" (p. 69). With regard to the dissemination of hate propaganda, the Special Committee found that the prevalence and scope of such material had risen since the Cohen Committee made its report, stating (at p. 69):

There has been a recent upsurge in hate propaganda. It has been found in virtually every part of Canada. Not only is it anti-semitic and anti-black, as in the 1960s, but it is also now anti-Roman Catholic, anti-East Indian, anti-aboriginal people and anti-French. Some of this material is imported from the United States but much of it is produced in Canada. Most worrisome of all is that in recent years Canada has become a major source of supply of hate propaganda that finds its way to Europe, and especially to West Germany.

As the quotations above indicate, the presence of hate propaganda in Canada is sufficiently substantial to warrant concern. Disquiet caused by the existence of such material is not simply the product of its offensiveness, however, but stems from the very real harm which it causes. Essentially, there are two sorts of injury caused by hate propaganda. First, there is harm done to members of the target group. It is indisputable that the emotional damage caused by words may be of grave psychological and social consequence. In the context of sexual harassment, for example, this Court has found that words can in themselves constitute harassment (Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252). In a similar manner, words and writings that wilfully promote hatred can constitute a serious attack on persons belonging to a racial or religious group, and in this regard the Cohen Committee noted that these persons are humiliated and degraded (p. 214).

In my opinion, a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person's sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs (see I. Berlin, "Two Concepts of Liberty", in Four Essays on Liberty (1969), 118, at p. 155). The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society.

A second harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. The Cohen Committee noted that individuals can be persuaded to believe "almost anything" (p. 30) if information or ideas are communicated using the right technique and in the proper circumstances (at p. 8):

. . . we are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil. So Milton, who said "let truth and falsehood grapple: who ever knew truth put to the worse in a free and open encounter".

We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.

It is thus not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society. Moreover, the alteration of views held by the recipients of hate propaganda may occur subtlely, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some truth, an incipient effect not to be entirely discounted (see Matsuda, op. cit., at pp. 2339-40).

The threat to the self-dignity of target group members is thus matched by the possibility that prejudiced messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups in Canadian society. With these dangers in mind, the Cohen Committee made clear in its conclusions that the presence of hate propaganda existed as a baleful and pernicious element, and hence a serious problem, in Canada (at p. 59):

The amount of hate propaganda presently being disseminated and its measurable effects probably are not sufficient to justify a description of the problem as one of crisis or near crisis proportions. Nevertheless the problem is a serious one. We believe that, given a certain set of socio-economic circumstances, such as a deepening of the emotional tensions or the setting in of a severe business recession, public susceptibility might well increase significantly. Moreover, the potential psychological and social damage of hate propaganda, both to a desensitized majority and to sensitive minority target groups, is incalculable. As Mr. Justice Jackson of the United States Supreme Court wrote in Beauharnais v. Illinois, such "sinister abuses of our freedom of expression . . . can tear apart a society, brutalize its dominant elements, and persecute even to extermination, its minorities".

As noted previously, in articulating concern about hate propaganda and its contribution to racial and religious tension in Canada, the Cohen Committee recommended that Parliament use the Criminal Code in order to prohibit wilful, hate-promoting expression and underline Canada's commitment to end prejudice and intolerance.

The close connection between the recommendations of the Cohen Committee and the hate propaganda amendments to the Criminal Code made in 1970 indicates that in enacting s. 319(2) Parliament's purpose was to prevent the harm identified by the Committee as being caused by hate-promoting expression. More recent reports have echoed the findings and concerns of the Cohen Committee, lending further support to the substantial nature of the legislative objective. The 1981 Report Arising Out of the Activities of the Ku Klux Klan in British Columbia by John D. McAlpine noted evidence of racism and racial violence in British Columbia, and among its conclusions recommended the strengthening of existing remedies, including the criminal offence of the wilful promotion of hatred. The 1984 report of the Special Committee on Participation of Visible Minorities in Canadian Society, investigated, among many topics, legal and justice issues pertaining to and affecting members of visible minority groups in Canada. The Committee suggested a wider ranging prohibition in s. 319(2), most notably by removing reference to the mental element of wilfulness, as a response to the threat to equality and multiculturalism presented by hate propaganda (Recommendations 35-37). Also in 1984, the Canadian Bar Association's Report of the Special Committee on Racial and Religious Hatred found that the law had a role to play, both at the criminal and civil level, in restricting the dissemination of hate propaganda (p. 12). With regard to s. 319(2), this conclusion was affirmed two years later in Working Paper 50 of the Law Reform Commission of Canada, entitled Hate Propaganda (1986).

(ii) International Human Rights Instruments

There is a great deal of support, both in the submissions made by those seeking to uphold s. 319(2) in this appeal and in the numerous studies of racial and religious hatred in Canada, for the conclusion that the harm caused by hate propaganda represents a pressing and substantial concern in a free and democratic society. I would also refer to international human rights principles, however, for guidance with respect to assessing the legislative objective.

Generally speaking, the international human rights obligations taken on by Canada reflect the values and principles of a free and democratic society, and thus those values and principles that underlie the Charter itself (Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, per Dickson C.J., at p. 348). Moreover, international human rights law and Canada's commitments in that area are of particular significance in assessing the importance of Parliament's objective under s. 1. As stated in Slaight Communications Inc. v. Davidson, supra, at pp. 1056-57:

. . . Canada's international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights.

In the context of justifying an infringement of s. 2(b), the majority in Slaight made a point of noting that a value enjoying status as an international human right is generally to be ascribed a high degree of importance under s. 1 of the Charter (pp. 1056-57).

No aspect of international human rights has been given attention greater than that focused upon discrimination. The large emphasis placed upon eradicating discrimination is evident in the fact that all but one of the major international human rights instruments (the European Social Charter) proscribe it in an article of general application (P. Sieghart, The International Law of Human Rights (1983), at p. 75). This high concern regarding discrimination has led to the presence in two international human rights documents of articles forbidding the dissemination of hate propaganda.

In 1966, the United Nations adopted the International Convention on the Elimination of All Forms of Racial Discrimination, Can. T.S. 1970 No. 28 (hereineafter "CERD"). The Convention, in force since 1969 and including Canada among its signatory members, contains a resolution that States Parties agree to:

. . . adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination.

Article 4 of the CERD is of special interest, providing that:

ARTICLE 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or other ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a)Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

Further, the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966) (hereinafter "ICCPR"), adopted by the United Nations in 1966 and in force in Canada since 1976, in the following two articles guarantees the freedom of expression while simultaneously prohibiting the advocacy of hatred:

Article 19. . . .

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20.1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

It appears that the protection provided freedom of expression by CERD and ICCPR does not extend to cover communications advocating racial or religious hatred. In CERD, Article 5 guarantees a number of civil rights, including freedom of expression, but it is generally agreed that this guarantee does not prevent a State Party from prohibiting hate propaganda (Study on the Implementation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, prepared by Special Rapporteur Mr. José D. Inglés, A/CONF. 119/10, May 18, 1983, para. 108). As for ICCPR, in 1981 a complaint against Canada was submitted by Mr. John Ross Taylor and the Western Guard Party (also appealing to this Court) to the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights. The complaint alleged that s. 13(1) of the Canadian Human Rights Act, S.C. 1976-77, c. 33 (now R.S.C., 1985, c. H-6), which prohibits the communication of hate messages by telephone, had been applied against Mr. Taylor and his organization in violation of Article 19 of ICCPR. The Committee rejected this argument, however, holding that it was incompatible with the provisions of ICCPR, and in particular with Article 20, stating that,

. . . the opinions which Mr. [Taylor] seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit.

(Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), para. 8(b), decision reported in part at (1983), 5 C.H.R.R. D/2397.)

In discussing the stance taken toward hate propaganda in international law, it is also worth mentioning the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), to which twenty-one states are parties. The Convention contains a qualified guarantee of free expression in Article 10, which reads as follows:

Article 10

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. . . .

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10(2), the language of which bears significant resemblance to that of s. 1 of the Charter, has been interpreted by the European Commission of Human Rights so as to permit the prohibition of racist communications as a valid derogation from the protection of free expression (see Felderer v. Sweden (1986), 8 E.H.R.R. 91; X. v. Federal Republic of Germany, Eur. Comm. H. R., Application No. 9235/81, July 16, 1982, D.R. 29, p. 194; and Lowes v. United Kingdom, Eur. Comm. H. R., Application No. 13214/87, December 9, 1988, unreported). In the leading pronouncement of the Commission, however, Article 17 of the Convention was invoked in order to justify hate propaganda laws (Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187). Article 17 prevents the interpretation of any Convention right so as to imply a "right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention". The decision in Glimmerveen also utilized Article 14, which provides that the enjoyment of Convention rights and freedoms shall be secured without discrimination on any ground such as, inter alia, race or colour.

CERD and ICCPR demonstrate that the prohibition of hate-promoting expression is considered to be not only compatible with a signatory nation's guarantee of human rights, but is as well an obligatory aspect of this guarantee. Decisions under the European Convention for the Protection of Human Rights and Fundamental Freedoms are also of aid in illustrating the tenor of the international community's approach to hate propaganda and free expression. This is not to deny that finding the correct balance between prohibiting hate propaganda and ensuring freedom of expression has been a source of debate internationally (see, e.g., N. Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination (1980), at pp. 43-54). But despite debate Canada, along with other members of the international community, has indicated a commitment to prohibiting hate propaganda, and in my opinion this Court must have regard to that commitment in investigating the nature of the government objective behind s. 319(2) of the Criminal Code. That the international community has collectively acted to condemn hate propaganda, and to oblige State Parties to CERD and ICCPR to prohibit such expression, thus emphasizes the importance of the objective behind s. 319(2) and the principles of equality and the inherent dignity of all persons that infuse both international human rights and the Charter.

(iii) Other Provisions of the Charter

Significant indicia of the strength of the objective behind s. 319(2) are gleaned not only from the international arena, but are also expressly evident in various provisions of the Charter itself. As Wilson J. noted in Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at p. 218:

. . . it is important to bear in mind that the rights and freedoms set out in the Charter are fundamental to the political structure of Canada and are guaranteed by the Charter as part of the supreme law of our nation. I think that in determining whether a particular limitation is a reasonable limit prescribed by law which can be "demonstrably justified in a free and democratic society" it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.

Most importantly for the purposes of this appeal, ss. 15 and 27 represent a strong commitment to the values of equality and multiculturalism, and hence underline the great importance of Parliament's objective in prohibiting hate propaganda.

Looking first to s. 15, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, I said that "[a] free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter" (p. 336). Section 15 lends further support to this observation, for the effects of entrenching a guarantee of equality in the Charter are not confined to those instances where it can be invoked by an individual against the state. Insofar as it indicates our society's dedication to promoting equality, s. 15 is also relevant in assessing the aims of s. 319(2) of the Criminal Code under s. 1. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, this Court examined the equality guarantee of s. 15, McIntyre J. noting (at p. 171):

It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component.

As noted in Big M Drug Mart, promoting equality is an undertaking essential to any free and democratic society, and I believe that the words of McIntyre J. support this position. The principles underlying s. 15 of the Charter are thus integral to the s. 1 analysis.

In its written submission to the Court, the intervenor L.E.A.F. made the following comment in support of the view that the public and wilful promotion of group hatred is properly understood as a practice of inequality:

Government sponsored hatred on group grounds would violate section 15 of the Charter. Parliament promotes equality and moves against inequality when it prohibits the wilful public promotion of group hatred on these grounds. It follows that government action against group hate, because it promotes social equality as guaranteed by the Charter, deserves special constitutional consideration under section 15.

I agree with this statement. In light of the Charter commitment to equality, and the reflection of this commitment in the framework of s. 1, the objective of the impugned legislation is enhanced insofar as it seeks to ensure the equality of all individuals in Canadian society. The message of the expressive activity covered by s. 319(2) is that members of identifiable groups are not to be given equal standing in society, and are not human beings equally deserving of concern, respect and consideration. The harms caused by this message run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.

Section 15 is not the only Charter provision which emphasizes values both important to a free and democratic society and pertinent to the disposition of this appeal under s. 1. Section 27 states that:

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

This Court has where possible taken account of s. 27 and its recognition that Canada possesses a multicultural society in which the diversity and richness of various cultural groups is a value to be protected and enhanced. Section 27 has therefore been used in a number of judgments of this Court, both as an aid in interpreting the definition of Charter rights and freedoms (see, e.g., Big M Drug Mart, supra, per Dickson J., at pp. 337-38, Edwards Books, supra, per Dickson C.J., at p. 758; and Andrews v. Law Society of British Columbia, supra, per McIntyre J., at p. 171) and as an element in the s. 1 analysis (see, e.g., Edwards Books, per La Forest J., at p. 804, and Wilson J., at p. 809).

The value expressed in s. 27 cannot be casually dismissed in assessing the validity of s. 319(2) under s. 1, and I am of the belief that s. 27 and the commitment to a multicultural vision of our nation bear notice in emphasizing the acute importance of the objective of eradicating hate propaganda from society. Professor J. E. Magnet has dealt with some of the factors which may be used to inform the meaning of s. 27, and of these I expressly adopt the principle of non-discrimination and the need to prevent attacks on the individual's connection with his or her culture, and hence upon the process of self-development (see Magnet "Multiculturalism and Collective Rights: Approaches to Section 27", in G.-A. Beaudoin and E. Ratushny, eds., op. cit., at p. 739). Indeed, the sense that an individual can be affected by treatment of a group to which he or she belongs is clearly evident in a number of other Charter provisions not yet mentioned, including ss. 16 to 23 (language rights), s. 25 (aboriginal rights), s. 28 (gender equality) and s. 29 (denominational schools).

Hate propaganda seriously threatens both the enthusiasm with which the value of equality is accepted and acted upon by society and the connection of target group members to their community. I thus agree with the sentiments of Cory J.A. who, in writing to uphold s. 319(2) in R. v. Andrews (1988), 1988 CanLII 200 (ON CA), 65 O.R. (2d) 161, said (at p. 181):

Multiculturalism cannot be preserved let alone enhanced if free rein is given to the promotion of hatred against identifiable cultural groups.

When the prohibition of expressive activity that promotes hatred of groups identifiable on the basis of colour, race, religion, or ethnic origin is considered in light of s. 27, the legitimacy and substantial nature of the government objective is therefore considerably strengthened.

(iv) Conclusion Respecting Objective of Section 319(2)

In my opinion, it would be impossible to deny that Parliament's objective in enacting s. 319(2) is of the utmost importance. Parliament has recognized the substantial harm that can flow from hate propaganda, and in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension in Canada has decided to suppress the wilful promotion of hatred against identifiable groups. The nature of Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred (Jones, supra, per La Forest J., at pp. 299-300). Additionally, the international commitment to eradicate hate propaganda and the stress placed upon equality and multiculturalism in the Charter strongly buttress the importance of this objective. I consequently find that the first part of the test under s. 1 of the Charter is easily satisfied and that a powerfully convincing legislative objective exists such as to justify some limit on freedom of expression.

D. Proportionality

The second branch of the Oakes test -- proportionality -- poses the most challenging questions with respect to the validity of s. 319(2) as a reasonable limit on freedom of expression in a free and democratic society. It is therefore not surprising to find most commentators, as well as the litigants in the case at bar, agreeing that the objective of the provision is of great importance, but to observe considerable disagreement when it comes to deciding whether the means chosen to further the objective are proportional to the ends. (Among the more recent Canadian legal articles supporting the validity of a provision in the nature of s. 319(2) see: D. Bottos, "Keegstra and Andrews: A Commentary on Hate Propaganda and the Freedom of Expression" (1989), 27 Alta. L. Rev. 461; Cotler, op. cit.; A. Fish, "Hate Promotion and Freedom of Expression: Truth and Consequences" (1989), 2 Can. J.L. & Juris. 111; A. W. MacKay, "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713; N. N. Rauf, "Freedom of Expression, the Presumption of Innocence and Reasonable Limits: An Analysis of Keegstra and Andrews" (1988), 65 C.R. (3d) 356; A. Regel, "Hate Propaganda: A Reason to Limit Freedom of Speech" (1984-85), 49 Sask. L. Rev. 303. Canadian writers taking the opposite view include R. Bessner, "The Constitutionality of the Group Libel Offences in the Canadian Criminal Code" (1988), 17 Man. L.J. 183; A. A. Borovoy, "Freedom of Expression: Some Recurring Impediments" in R. S. Abella and M. L. Rothman, eds., op. cit., at p. 125; S. Braun, "Social and Racial Tolerance and Freedom of Expression in a Democratic Society: Friends or Foes? Regina v. Zundel" (1987), 11 Dalhousie L. J. 471.)

(i) Relation of the Expression at Stake to Free Expression Values

In discussing the nature of the government objective, I have commented at length upon the way in which the suppression of hate propaganda furthers values basic to a free and democratic society. I have said little, however, regarding the extent to which these same values, including the freedom of expression, are furthered by permitting the exposition of such expressive activity. This lacuna is explicable when one realizes that the interpretation of s. 2(b) under Irwin Toy, supra gives protection to a very wide range of expression. Content is irrelevant to this interpretation, the result of a high value being placed upon freedom of expression in the abstract. This approach to s. 2(b) often operates to leave unexamined the extent to which the expression at stake in a particular case promotes freedom of expression principles. In my opinion, however, the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).

In Rocket v. Royal College of Dental Surgeons of Ontario, supra, McLachlin J. recognized the importance of context in evaluating expressive activity under s. 1, stating with regard to commercial speech (at pp. 246-47):

While the Canadian approach does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question. As Wilson J. notes in Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious. [See also Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), per Dickson C.J., at p. 1135.]

Using this contextual approach, McLachlin J. evaluated the expression jeopardized by government regulation in light of s. 2(b) values. She thus went on to consider those interests which argued for restriction only after having assessed the importance of the freedom of expression interest at stake on the facts of the case.

Royal College dealt with provincial limitations upon the freedom of dentists to impart information to patients and potential patients via advertisements. In these circumstances, the Court found that the expression regulated was of a nature that made its curtailment something less than a most serious infringement of the freedom of expression, the limitation affecting neither participation in the political process nor the ability of the individual to achieve spiritual or artistic self-fulfillment. The resulting conclusion was that "restrictions on expression of this kind might be easier to justify than other infringements" (p. 247). At the same time, however, it was recognized that an interest existed in those who wished to make an informed choice as to a dentist, and in so far as access to such information was restricted the infringement of s. 2(b) could not be lightly dismissed (p. 247). Moreover, unlike in Irwin Toy, the information was not aimed at children, a group hampered in making informed choices, and hence any heightened state interest that might arise in protecting a vulnerable group was absent (p. 248).

Applying the Royal College approach to the context of this appeal is a key aspect of the s. 1 analysis. One must ask whether the expression prohibited by s. 319(2) is tenuously connected to the values underlying s. 2(b) so as to make the restriction "easier to justify than other infringements." In this regard, let me begin by saying that, in my opinion, there can be no real disagreement about the subject matter of the messages and teachings communicated by the respondent, Mr. Keegstra: it is deeply offensive, hurtful and damaging to target group members, misleading to his listeners, and antithetical to the furtherance of tolerance and understanding in society. Furthermore, as will be clear when I come to discuss in detail the interpretation of s. 319(2), there is no doubt that all expression fitting within the terms of the offence can be similarly described. To say merely that expression is offensive and disturbing, however, fails to address satisfactorily the question of whether, and to what extent, the expressive activity prohibited by s. 319(2) promotes the values underlying the freedom of expression. It is to this difficult and complex question that I now turn.

From the outset, I wish to make clear that in my opinion the expression prohibited by s. 319(2) is not closely linked to the rationale underlying s. 2(b). Examining the values identified in Ford and Irwin Toy as fundamental to the protection of free expression, arguments can be made for the proposition that each of these values is diminished by the suppression of hate propaganda. While none of these arguments is spurious, I am of the opinion that expression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression values.

At the core of freedom of expression lies the need to ensure that truth and the common good are attained, whether in scientific and artistic endeavors or in the process of determining the best course to take in our political affairs. Since truth and the ideal form of political and social organization can rarely, if at all, be identified with absolute certainty, it is difficult to prohibit expression without impeding the free exchange of potentially valuable information. Nevertheless, the argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided.

Another component central to the rationale underlying s. 2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfillment by developing and articulating thoughts and ideas as they see fit. It is true that s. 319(2) inhibits this process among those individuals whose expression it limits, and hence arguably works against freedom of expression values. On the other hand, such self-autonomy stems in large part from one's ability to articulate and nurture an identity derived from membership in a cultural or religious group. The message put forth by individuals who fall within the ambit of s. 319(2) represents a most extreme opposition to the idea that members of identifiable groups should enjoy this aspect of the s. 2(b) benefit. The extent to which the unhindered promotion of this message furthers free expression values must therefore be tempered insofar as it advocates with inordinate vitriol an intolerance and prejudice which view as execrable the process of individual self-development and human flourishing among all members of society.

Moving on to a third strain of thought said to justify the protection of free expression, one's attention is brought specifically to the political realm. The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons. Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity. The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all.

The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values, but the degree of this limitation is not substantial. I am aware that the use of strong language in political and social debate -- indeed, perhaps even language intended to promote hatred -- is an unavoidable part of the democratic process. Moreover, I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.

Indeed, one may quite plausibly contend that it is through rejecting hate propaganda that the state can best encourage the protection of values central to freedom of expression, while simultaneously demonstrating dislike for the vision forwarded by hate-mongers. In this regard, the reaction to various types of expression by a democratic government may be perceived as meaningful expression on behalf of the vast majority of citizens. I do not wish to be construed as saying that an infringement of s. 2(b) can be justified under s. 1 merely because it is the product of a democratic process; the Charter will not permit even the democratically elected legislature to restrict the rights and freedoms crucial to a free and democratic society. What I do wish to emphasize, however, is that one must be careful not to accept blindly that the suppression of expression must always and unremittingly detract from values central to freedom of expression (L. C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986), at pp. 87-93).

I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale. Together with my comments as to the tenuous link between communications covered by s. 319(2) and other values at the core of the free expression guarantee, this conclusion leads me to disagree with the opinion of McLachlin J. that the expression at stake in this appeal mandates the most solicitous degree of constitutional protection. In my view, hate propaganda should not be accorded the greatest of weight in the s. 1 analysis.

As a caveat, it must be emphasized that the protection of extreme statements, even where they attack those principles underlying the freedom of expression, is not completely divorced from the aims of s. 2(b) of the Charter. As noted already, suppressing the expression covered by s. 319(2) does to some extent weaken these principles. It can also be argued that it is partly through a clash with extreme and erroneous views that truth and the democratic vision remain vigorous and alive (see Braun, op. cit., at p. 490. In this regard, judicial pronouncements strongly advocating the importance of free expression values might be seen as helping to expose prejudiced statements as valueless even while striking down legislative restrictions that proscribe such expression. Additionally, condoning a democracy's collective decision to protect itself from certain types of expression may lead to a slippery slope on which encroachments on expression central to s. 2(b) values are permitted. To guard against such a result, the protection of communications virulently unsupportive of free expression values may be necessary in order to ensure that expression more compatible with these values is never unjustifiably limited.

None of these arguments is devoid of merit, and each must be taken into account in determining whether an infringement of s. 2(b) can be justified under s. 1. It need not be, however, that they apply equally or with the greatest of strength in every instance. As I have said already, I am of the opinion that hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. While I cannot conclude that hate propaganda deserves only marginal protection under the s. 1 analysis, I can take cognizance of the fact that limitations upon hate propaganda are directed at a special category of expression which strays some distance from the spirit of s. 2(b), and hence conclude that "restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b)" (Royal College, supra, at p. 247).

As a final point, it should be stressed that in discussing the relationship between hate propaganda and freedom of expression values I do not wish to be taken as advocating an inflexible "levels of scrutiny" categorization of expressive activity. The contextual approach necessitates an open discussion of the manner in which s. 2(b) values are engaged in the circumstances of an appeal. To become transfixed with categorization schemes risks losing the advantage associated with this sensitive examination of free expression principles, and I would be loath to sanction such a result.

Having made some preliminary comments as to the nature of the expression at stake in this appeal, it is now possible to ask whether s. 319(2) is an acceptably proportional response to Parliament's valid objective. As stated above, the proportionality aspect of the Oakes test requires the Court to decide whether the impugned state action: i) is rationally connected to the objective; ii) minimally impairs the Charter right or freedom at issue; and iii) does not produce effects of such severity so as to make the impairment unjustifiable. I will now address these segments of the proportionality inquiry, beginning with the question of whether a rational connection exists between s. 319(2) and the legislative objective.

(ii) Rational Connection

Section 319(2) makes the wilful promotion of hatred against identifiable groups an indictable offence, indicating Parliament's serious concern about the effects of such activity. Those who would uphold the provision argue that the criminal prohibition of hate propaganda obviously bears a rational connection to the legitimate Parliamentary objective of protecting target group members and fostering harmonious social relations in a community dedicated to equality and multiculturalism. I agree, for in my opinion it would be difficult to deny that the suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society.

Doubts have been raised, however, as to whether the actual effect of s. 319(2) is to undermine any rational connection between it and Parliament's objective. As stated in the reasons of McLachlin J., there are three primary ways in which the effect of the impugned legislation might be seen as an irrational means of carrying out the Parliamentary purpose. First, it is argued that the provision may actually promote the cause of hate-mongers by earning them extensive media attention. In this vein, it is also suggested that persons accused of intentionally promoting hatred often see themselves as martyrs, and may actually generate sympathy from the community in the role of underdogs engaged in battle against the immense powers of the state. Second, the public may view the suppression of expression by the government with suspicion, making it possible that such expression -- even if it be hate propaganda -- is perceived as containing an element of truth. Finally, it is often noted, citing the writings of A. Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979), that Germany of the 1920s and 1930s possessed and used hate propaganda laws similar to those existing in Canada, and yet these laws did nothing to stop the triumph of a racist philosophy under the Nazis.

If s. 319(2) can be said to have no impact in the quest to achieve Parliament's admirable objectives, or in fact works in opposition to these objectives, then I agree that the provision could be described as "arbitrary, unfair or based on irrational considerations" (Oakes, supra, at p. 139). I recognize that the effect of s. 319(2) is impossible to define with exact precision -- the same can be said for many laws, criminal or otherwise. In my view, however, the position that there is no strong and evident connection between the criminalization of hate propaganda and its suppression is unconvincing. I come to this conclusion for a number of reasons, and will elucidate these by answering in turn the three arguments just mentioned.

It is undeniable that media attention has been extensive on those occasions when s. 319(2) has been used. Yet from my perspective, s. 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. The existence of a particular criminal law, and the process of holding a trial when that law is used, is thus itself a form of expression, and the message sent out is that hate propaganda is harmful to target group members and threatening to a harmonious society (see Rauf, op. cit., at p. 359). As I stated in my reasons in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at p. 70:

The criminal law is a very special form of governmental regulation, for it seeks to express our society's collective disapprobation of certain acts and omissions.

The many, many Canadians who belong to identifiable groups surely gain a great deal of comfort from the knowledge that the hate-monger is criminally prosecuted and his or her ideas rejected. Equally, the community as a whole is reminded of the importance of diversity and multiculturalism in Canada, the value of equality and the worth and dignity of each human person being particularly emphasized.

In this context, it can also be said that government suppression of hate propaganda will not make the expression attractive and hence increase acceptance of its content. Similarly, it is very doubtful that Canadians will have sympathy for either propagators of hatred or their ideas. Governmental disapproval of hate propaganda does not invariably result in dignifying the suppressed ideology. Pornography is not dignified by its suppression, nor are defamatory statements against individuals seen as meritorious because the common law lends its support to their prohibition. Again, I stress my belief that hate propaganda legislation and trials are a means by which the values beneficial to a free and democratic society can be publicized. In this context, no dignity will be unwittingly foisted upon the convicted hate-monger or his or her philosophy, and that a hate-monger might see him or herself as a martyr is of no matter to the content of the state's message.

As for the use of hate propaganda laws in pre-World War Two Germany, I am skeptical as to the relevance of the observation that legislation similar to s. 319(2) proved ineffective in curbing the racism of the Nazis. No one is contending that hate propaganda laws can in themselves prevent the tragedy of a Holocaust; conditions particular to Germany made the rise of Nazi ideology possible despite the existence and use of these laws (see A. Doskow and S. B. Jacoby, "Anti Semitism and the Law in Pre-Nazi Germany" (1940), 3 Contemporary Jewish Record 498, at p. 509). Rather, hate propaganda laws are one part of a free and democratic society's bid to prevent the spread of racism, and their rational connection to this objective must be seen in such a context. Certainly West Germany has not reacted to the failure of pre-war laws by seeking their removal, a new set of criminal offences having been implemented as recently as 1985 (see E. Stein, "History Against Free Speech: The New German Law Against the `Auschwitz' -- and other -- `Lies'" (1987), 85 Mich. L. Rev. 277). Nor, as has been discussed, has the international community regarded the promulgation of laws suppressing hate propaganda as futile or counter-productive. Indeed, this Court's attention has been drawn to the fact that a great many countries possess legislation similar to that found in Canada (see, e.g., England and Wales, Public Order Act 1986 (U.K.), 1986, c. 64, ss. 17 to 23; New Zealand, Race Relations Act 1971 (N.Z.), No. 150, s. 25; Sweden, Penal Code, c. 16, s. 8; Netherlands, Penal Code, ss. 137c, 137d and 137e; India, Penal Code, ss. 153-A and 153-B, and generally, the United Nation's Study on the Implementation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination). The experience of Germany represents an awful nadir in the history of racism, and demonstrates the extent to which flawed and brutal ideas can capture the acceptance of a significant number of people. One aspect of this experience is not, however, determinative in deciding whether or not hate propaganda laws are effective.

In sum, having found that the purpose of the challenged legislation is valid, I also find that the means chosen to further this purpose are rational in both theory and operation, and therefore conclude that the first branch of the proportionality test has been met. Accordingly, I move now to the issue of whether s. 319(2) minimally impairs the s. 2(b) guarantee of freedom of expression.

(iii) Minimal Impairment of the Section 2(b) Freedom

The criminal nature of the impugned provision, involving the associated risks of prejudice through prosecution, conviction and the imposition of up to two years imprisonment, indicates that the means embodied in hate propaganda legislation should be carefully tailored so as to minimize impairment of the freedom of expression. It therefore must be shown that s. 319(2) is a measured and appropriate response to the phenomenon of hate propaganda, and that it does not overly circumscribe the s. 2(b) guarantee.

The main argument of those who would strike down s. 319(2) is that it creates a real possibility of punishing expression that is not hate propaganda. It is thus submitted that the legislation is overbroad, its terms so wide as to include expression which does not relate to Parliament's objective, and also unduly vague, in that a lack of clarity and precision in its words prevents individuals from discerning its meaning with any accuracy. In either instance, it is said that the effect of s. 319(2) is to limit the expression of merely unpopular or unconventional communications. Such communications may present no risk of causing the harm which Parliament seeks to prevent, and will perhaps be closely associated with the core values of s. 2(b). This overbreadth and vagueness could consequently allow the state to employ s. 319(2) to infringe excessively the freedom of expression or, what is more likely, could have a chilling effect whereby persons potentially within s. 319(2) would exercise self-censorship. Accordingly, those attacking the validity of s. 319(2) contend that vigorous debate on important political and social issues, so highly valued in a society that prizes a diversity of ideas, is unacceptably suppressed by the provision.

The question to be answered, then, is whether s. 319(2) indeed fails to distinguish between low value expression that is squarely within the focus of Parliament's valid objective and that which does not invoke the need for the severe response of criminal sanction. In order to answer this question, and thus to determine whether s. 319(2) minimally impairs the freedom of expression, the nature and impact of specific features of the provision must be examined in some detail. These features relate to both the terms of the offence and the available defences enumerated in s. 319(3), and I find it convenient to utilize this slightly arbitrary division for the purposes of the following discussion. As well, in examining this aspect of the proportionality test I will comment upon the relevance of alternative modes of combatting the harm caused by hate propaganda.

a. Terms of Section 319(2)

In assessing the constitutionality of s. 319(2), especially as concerns arguments of overbreadth and vagueness, an immediate observation is that statements made "in private conversation" are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, indicating Parliament's concern not to intrude upon the privacy of the individual. Indeed, that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation (see Fish, op. cit., at p. 115). This observation is supported by comparing the words of s. 319(2) with those of the prohibition against the incitement of hatred likely to lead to a breach of peace in s. 319(1). Section 319(1) covers statements communicated "in any public place", suggesting that a wider scope of prohibition was intended where the danger occasioned by the statements was of an immediate nature, while the wording of s. 319(2) indicates that private conversations taking place in public areas are not prohibited. Moreover, it is reasonable to infer a subjective mens rea requirement regarding the type of conversation covered by s. 319(2), an inference supported by the definition of "private communication" contained in s. 183 of the Criminal Code. Consequently, a conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public.

Is s. 319(2) nevertheless overbroad because it captures all public expression intended to promote hatred? It would appear not, for the harm which the government seeks to prevent is not restricted to certain mediums and/or locations. To attempt to distinguish between various forms and fora would therefore be incongruent with Parliament's legitimate objective.

A second important element of s. 319(2) is its requirement that the promotion of hatred be "wilful". The nature of this mental element was explored by Martin J.A. in R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.). In that case, the two accused were charged under s. 319(2) (then s. 281.2(2)), after distributing handbills containing statements attacking the French Canadian public in Essex County. At the time, the francophone minority in the county was attempting to have the school board build a French language secondary school. The accused persons identified with French-speaking Canadians and were responding to opposition to the construction of the school. According to them, the pamphlet was intended as a satire that would bring a quick solution by provoking government reaction, thereby exerting pressure on the school board, but in spite of this explanation a conviction was entered at trial.

On appeal, Martin J.A. overturned the conviction. He noted that the word "wilfully" does not have a fixed meaning in criminal law, and thus sought to divine the use and import of the word as it appears in s. 319(2) (pp. 379-81). Comparing the section with s. 319(1) (then s. 281.2(1)), which prohibits incitement to hatred in a public place where such incitement is likely to lead to a breach of peace, he said (at pp. 381-82):

The insertion of the word "wilfully" in [s. 319(2)] was not necessary to import mens rea since that requirement would be implied in any event because of the serious nature of the offence: see R. v. Prue, supra. The statements, the communication of which are proscribed by [s. 319(2)], are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under [s. 319(1)]; it is reasonable to assume, therefore, that Parliament intended to limit the offence under [s. 319(2)] to the intentional promotion of hatred. It is evident that the use of the word "wilfully" in [s. 319(2)], and not in [s. 319(1)], reflects Parliament's policy to strike a balance in protecting the competing social interests of freedom of expression on the one hand, and public order and group reputation on the other hand.

More specifically, Martin J.A. went on to elaborate on the meaning of "wilfully", concluding that this mental element is satisfied only where an accused subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose (pp. 384-85). On the facts in Buzzanga, the trial judge had informed the jury that "wilfully" could be equated with the intention to create "controversy, furor and an uproar" (p. 386). This interpretation was clearly incompatible with Martin J.A.'s requirement that the promotion of hatred be intended or foreseen as substantially certain, and a new trial was therefore ordered.

The interpretation of "wilfully" in Buzzanga has great bearing upon the extent to which s. 319(2) limits the freedom of expression. This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. Such a reduced scope is recognized and applauded in the Law Reform Commission of Canada's Working Paper on Hate Propaganda, op. cit., it being said that (at p. 36):

The principle of restraint requires lawmakers to concern themselves not just with whom they want to catch, but also with whom they do not want to catch. For example, removing an intent or purpose requirement could well result in successful prosecutions of cases similar to Buzzanga, where members of a minority group publish hate propaganda against their own group in order to create controversy or to agitate for reform. This crime should not be used to prosecute such individuals.

I agree with the interpretation of "wilfully" in Buzzanga, and wholeheartedly endorse the view of the Law Reform Commission Working Paper that this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word "wilfully" imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression.

It has been argued, however, that even a demanding mens rea component fails to give s. 319(2) a constitutionally acceptable breadth. The problem is said to lie in the failure of the offence to require proof of actual hatred resulting from a communication, the assumption being that only such proof can demonstrate a harm serious enough to justify limiting the freedom of expression under s. 1. It was largely because of this lack of need for proof of actual hatred that Kerans J.A in the Court of Appeal held s. 319(2) to violate the Charter.

While mindful of the dangers identified by Kerans J.A., I do not find them sufficiently grave to compel striking down s. 319(2). First, to predicate the limitation of free expression upon proof of actual hatred gives insufficient attention to the severe psychological trauma suffered by members of those identifiable groups targeted by hate propaganda. Second, it is clearly difficult to prove a causative link between a specific statement and hatred of an identifiable group. In fact, to require direct proof of hatred in listeners would severely debilitate the effectiveness of s. 319(2) in achieving Parliament's aim. It is well accepted that Parliament can use the criminal law to prevent the risk of serious harms, a leading example being the drinking and driving provisions in the Criminal Code. The conclusions of the Cohen Committee and subsequent study groups show that the risk of hatred caused by hate propaganda is very real, and in view of the grievous harm to be avoided in the context of this appeal, I conclude that proof of actual hatred is not required in order to justify a limit under s. 1.

The next feature of the provision that must be explored is the phrase "promotes hatred against any identifiable group". Given the purpose of the provision to criminalize the spreading of hatred in society, I find that the word "promotes" indicates active support or instigation. Indeed the French version of the offence uses the verb "fomenter", which in English means to foment or stir up. In "promotes" we thus have a word that indicates more than simple encouragement or advancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group. As for the term "identifiable group", s. 318(4) states that an ""identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin". The act to be targeted is therefore the intentional fostering of hatred against particular members of our society, as opposed to any individual.

The meaning of "hatred" remains to be elucidated. Just as "wilfully" must be interpreted in the setting of s. 319(2), so must the word "hatred" be defined according to the context in which it is found. A dictionary definition may be of limited aid to such an exercise, for by its nature a dictionary seeks to offer a panoply of possible usages, rather than the correct meaning of a word as contemplated by Parliament. Noting the purpose of s. 319(2), in my opinion the term "hatred" connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews, supra, at p. 179:

Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)].

Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.

Those who argue that s. 319(2) should be struck down submit that it is impossible to define with care and precision a term like "hatred". Yet, as I have stated, the sense in which "hatred" is used in s. 319(2) does not denote a wide range of diverse emotions, but is circumscribed so as to cover only the most intense form of dislike. It was also argued on appeal, however, that regardless of the definition given "hatred" by the courts, the trier of fact must make a subjective decision in deciding whether "hatred" is indeed what the accused intended to promote. To determine if the promotion of hatred was intended, the trier will usually make an inference as to the necessary mens rea based upon the statements made. The subjective nature of this inferential exercise is said to create a danger that hatred of the type required by s. 319(2) will be found, though unjustifiably, in every instance where the trier dislikes or finds offensive the content of the accused's statements.

The danger that a trier will improperly infer hatred from statements he or she personally finds offensive cannot be dismissed lightly, yet I do not think that the subjectivity inherent in determining whether the accused intended to promote hatred, as opposed to an emotion involving a lesser degree of antipathy, represents an unbridled license to extend the scope of the offence. Recognizing the need to circumscribe the definition of "hatred" in the manner referred to above, a judge should direct the jury (or him or herself) regarding the nature of the term as it exists in s. 319(2). Such a direction should include express mention of the need to avoid finding that the accused intended to promote hatred merely because the expression is distasteful. If such a warning is given, the danger referred to above will be avoided and the freedom of expression limited no more than is necessary.

b. The Defences to Section 319(2)

The factors mentioned above suggest that s. 319(2) does not unduly restrict the s. 2(b) guarantee. The terms of the offence, as I have defined them, rather indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted. The specific defences provided are further glosses on the purview of the offence, and I repeat them here.

319. . . .

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

A careful reading of the s. 319(3) defences shows them to take in examples of expressive activity that generally would not fall within the "wilful promotion of hatred" as I have defined the phrase. Thus the three defences which include elements of good faith or honest belief -- namely, s. 319(3)(b), (c) and (d) -- would seem to operate to negate directly the mens rea in the offence, for only rarely will one who intends to promote hatred be acting in good faith or upon honest belief. These defences are hence intended to aid in making the scope of the wilful promotion of hatred more explicit; individuals engaging in the type of expression described are thus given a strong signal that their activity will not be swept into the ambit of the offence. The result is that what danger exists that s. 319(2) is overbroad or unduly vague, or will be perceived as such, is significantly reduced. To the extent that s. 319(3) provides justification for the accused who would otherwise fall within the parameters of the offence of wilfully promoting hatred, it reflects a commitment to the idea that an individual's freedom of expression will not be curtailed in borderline cases. The line between the rough and tumble of public debate and brutal, negative and damaging attacks upon identifiable groups is hence adjusted in order to give some leeway to freedom of expression.

The overlap between s. 319(2) and the defences is less pronounced in the case of the defence of truth, s. 319(3)(a) being more likely than the other defences to excuse the wilful promotion of hatred. This increased likelihood reveals the defence in para. (a) to be an especially poignant indicator of Parliament's cautionary approach and care in protecting freedom of expression. Of course, if statements of truth are made without the intention to promote hatred towards identifiable groups, the offence as defined in s. 319(2) has not been committed. On the other hand, if a situation arises where an individual uses statements of truth in order to promote hatred against identifiable groups, the accused is acquitted despite the existence of the harm which Parliament seeks to prevent. Excusing the accused who intentionally promotes hatred through the communication of truthful statements is thus a circumspect measure associated with the importance attributed to truth -- and hence to free expression -- in our society.

It has been forcefully argued before us that the defence of truth is insufficient protection against an overly broad hate propaganda law. In this vein, it is rightly pointed out that many (if not most) of the communications coming within s. 319(2) are not susceptible to a true/false categorization, existing instead as ideas or opinions in the mind of the communicator. The accused could therefore sincerely believe in the worth of his or her viewpoint and yet be unable to utilize the s. 319(3)(a) defence. Moreover, it is said that, even where a statement is capable of categorization as true or false, the individual honestly mistaken as to the validity of his or her position (even if innocently so) is left unprotected, a result which dangerously restricts freedom of expression, causing a "chill" on communications as those who fear that their statements may be false exercise self-censorship. Finally, one might wonder if the courts are not on dangerous ground in attempting to distinguish between truthfulness and falsehood. The potential for bias in making such a determination, be it intentional or subconscious, is a danger frequently noted in freedom of expression theory (this potential is equally evident in s. 319(3)(c), insofar as ideas are assessed in light of "reasonableness" and the "public benefit").

The way in which I have defined the s. 319(2) offence, in the context of the objective sought by society and the value of the prohibited expression, gives me some doubt as to whether the Charter mandates that truthful statements communicated with an intention to promote hatred need be excepted from criminal condemnation. Truth may be used for widely disparate ends, and I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred against a racial or religious group. It would seem to follow that there is no reason why the individual who intentionally employs such statements to achieve harmful ends must under the Charter be protected from criminal censure.

Nevertheless, it is open to Parliament to make a concession to free expression values, whether or not such is required by the Charter. Deference to truth as a value central to free expression has thus led Parliament to include the defence in s. 319(3)(a), even though the accused has used truthful statements to cause harm of the type falling squarely within the objective of the legislation. When the statement contains no truth, however, this flicker of justification for the intentional promotion of hatred is extinguished, and the harmful malice of the disseminator stands alone. The relationship between the value of hate propaganda as expression and the Parliamentary objective of eradicating harm, slightly altered so as to increase the magnitude of the former where the statement of the accused is truthful, thus returns to its more usual condition, a condition in which it is permissible to suppress the expression.

Because the presence of truth, though legally a defence to a charge under s. 319(2), does not change the fact that the accused has intended to promote the hatred of an identifiable group, I cannot find excessive impairment of the freedom of expression merely because s. 319(3)(a) does not cover negligent or innocent error. Whether or not a statement is susceptible to classification as true or false, my inclination is therefore to accept that such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. That the legislative line is drawn so as to convict the accused who is negligent or even innocent regarding the accuracy of his or her statements is perfectly acceptable, for the mistake is not as to the use to which the information is put, namely, the promotion of hatred against an identifiable group. As for the argument that the courts and legislature should not involve themselves in the evaluation of "truth", "reasonable grounds for finding truth" or "public interest", the same response applies. Where the likelihood of truth or benefit from an idea diminishes to the point of vanishing, and the statement in question has harmful consequences inimical to the most central values of a free and democratic society, it is not excessively problematic to make a judgment that involves limiting expression.

Before looking at the effect which alternative responses to hate propaganda have upon the proportionality of s. 319(2), I should comment on a final argument marshalled in support of striking down s. 319(2) because of overbreadth or vagueness. It is said that the presence of the legislation has led authorities to interfere with a diverse range of political, educational and artistic expression, demonstrating only too well the way in which overbreadth and vagueness can result in undue intrusion and the threat of persecution. In this regard, a number of incidents are cited where authorities appear to have been overzealous in their interpretation of the law, including the arrest of individuals distributing pamphlets admonishing Americans to leave the country and the temporary holdup at the border of a film entitled Nelson Mandela and Salman Rushdie's novel Satanic Verses (see, e.g., Borovoy, op. cit., at p. 141; note that the latter two examples involve not s. 319(2), but similar wording found in Customs Tariff, S.C. 1987, c. 49, s. 114, Schedule VII, Code 9956(b)).

That s. 319(2) may in the past have led authorities to restrict expression offering valuable contributions to the arts, education or politics in Canada is surely worrying. I hope, however, that my comments as to the scope of the provision make it obvious that only the most intentionally extreme forms of expression will find a place within s. 319(2). In this light, one can safely say that the incidents mentioned above illustrate not over-expansive breadth and vagueness in the law, but rather actions by the state which cannot be lawfully taken pursuant to s. 319(2). The possibility of illegal police harassment clearly has minimal bearing on the proportionality of hate propaganda legislation to legitimate Parliamentary objectives, and hence the argument based on such harassment can be rejected.

c. Alternative Modes of Furthering Parliament's Objective

One of the strongest arguments supporting the contention that s. 319(2) unacceptably impairs the s. 2(b) guarantee posits that a criminal sanction is not necessary to meet Parliament's objective. Thus, even though the terms of s. 319(2) and the nature of the available defences expose an individual to conviction only in narrow and clearly defined circumstances, it is said that non-criminal responses can more effectively combat the harm caused by hate propaganda. Most generally, it is said that discriminatory ideas can best be met with information and education programmes extolling the merits of tolerance and cooperation between racial and religious groups. As for the prohibition of hate propaganda, human rights statutes are pointed to as being a less severe and more effective response than the criminal law. Such statutes not only subject the disseminator of hate propaganda to reduced stigma and punishment, but also take a less confrontational approach to the suppression of such expression. This conciliatory tack is said to be preferable to penal sanction because an incentive is offered the disseminator to cooperate with human rights tribunals and thus to amend his or her conduct.

Given the stigma and punishment associated with a criminal conviction and the presence of other modes of government response in the fight against intolerance, it is proper to ask whether s. 319(2) can be said to impair minimally the freedom of expression. With respect to the efficacy of criminal legislation in advancing the goals of equality and multicultural tolerance in Canada, I agree that the role of s. 319(2) will be limited. It is important, in my opinion, not to hold any illusions about the ability of this one provision to rid our society of hate propaganda and its associated harms. Indeed, to become overly complacent, forgetting that there are a great many ways in which to address the problem of racial and religious intolerance, could be dangerous. Obviously, a variety of measures need be employed in the quest to achieve such lofty and important goals.

In assessing the proportionality of a legislative enactment to a valid governmental objective, however, s. 1 should not operate in every instance so as to force the government to rely upon only the mode of intervention least intrusive of a Charter right or freedom. It may be that a number of courses of action are available in the furtherance of a pressing and substantial objective, each imposing a varying degree of restriction upon a right or freedom. In such circumstances, the government may legitimately employ a more restrictive measure, either alone or as part of a larger programme of action, if that measure is not redundant, furthering the objective in ways that alternative responses could not, and is in all other respects proportionate to a valid s. 1 aim.

Though the fostering of tolerant attitudes among Canadians will be best achieved through a combination of diverse measures, the harm done through hate propaganda may require that especially stringent responses be taken to suppress and prohibit a modicum of expressive activity. At the moment, for example, the state has the option of responding to hate propaganda by acting under either the Criminal Code or human rights provisions. In my view, having both avenues of redress at the state's disposal is justified in a free and democratic society. I see no reason to assume that the state will always utilize the most severe tool at hand, namely, the criminal law, to prevent the dissemination of hate propaganda. Where use of the sanction provided by s. 319(2) is imprudent, employing human rights legislation may be the more attractive route to take, but there may equally be circumstances in which the more confrontational response of criminal prosecution is best suited to punish a recalcitrant hate-monger. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by intentionally communicating hate propaganda, will occasionally require use of the criminal law.

d. Conclusion as to Minimal Impairment

To summarize the above discussion, in light of the great importance of Parliament's objective and the discounted value of the expression at issue I find that the terms of s. 319(2) create a narrowly confined offence which suffers from neither overbreadth nor vagueness. This interpretation stems largely from my view that the provision possesses a stringent mens rea requirement, necessitating either an intent to promote hatred or knowledge of the substantial certainty of such, and is also strongly supported by the conclusion that the meaning of the word "hatred" is restricted to the most severe and deeply-felt form of opprobrium. Additionally, however, the conclusion that s. 319(2) represents a minimal impairment of the freedom of expression gains credence through the exclusion of private conversation from its scope, the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences. As for the argument that other modes of combatting hate propaganda eclipse the need for a criminal provision, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. It will indeed be more difficult to justify a criminal statute under s. 1, but in my opinion the necessary justificatory arguments have been made out with respect to s. 319(2).

I thus conclude that s. 319(2) of the Criminal Code does not unduly impair the freedom of expression, and it remains only to examine whether its effects nonetheless present so grave a limitation upon the s. 2(b) guarantee so as to outweigh the benefits to be gained from a measure otherwise proportional to an important legislative objective.

(iv) Effects of the Limitation

The third branch of the proportionality test entails a weighing of the importance of the state objective against the effect of limits imposed upon a Charter right or guarantee. Even if the purpose of the limiting measure is substantial and the first two components of the proportionality test are satisfied, the deleterious effects of a limit may be too great to permit the infringement of the right or guarantee in issue.

I have examined closely the significance of the freedom of expression values threatened by s. 319(2) and the importance of the objective which lies behind the criminal prohibition. It will by now be quite clear that I do not view the infringement of s. 2(b) by s. 319(2) as a restriction of the most serious kind. The expressive activity at which this provision aims is of a special category, a category only tenuously connected with the values underlying the guarantee of freedom of speech. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda affected by s. 319(2) represents an impairment of the individual's freedom of expression which is not of a most serious nature.

It is also apposite to stress yet again the enormous importance of the objective fueling s. 319(2), an objective of such magnitude as to support even the severe response of criminal prohibition. Few concerns can be as central to the concept of a free and democratic society as the dissipation of racism, and the especially strong value which Canadian society attaches to this goal must never be forgotten in assessing the effects of an impugned legislative measure. When the purpose of s. 319(2) is thus recognized, I have little trouble in finding that its effects, involving as they do the restriction of expression largely removed from the heart of free expression values, are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b).

E. Analysis of Section 319(2) Under Section 1 of the Charter: Conclusion

I find that the infringement of the respondent's freedom of expression as guaranteed by s. 2(b) should be upheld as a reasonable limit prescribed by law in a free and democratic society. Furthering an immensely important objective and directed at expression distant from the core of free expression values, s. 319(2) satisfies each of the components of the proportionality inquiry. I thus disagree with the Alberta Court of Appeal's conclusion that this criminal prohibition of hate propaganda violates the Charter, and would allow the appeal in this respect.

VIII. Section 319(3)(a) and the Presumption of Innocence

As already noted, s. 319(3)(a) of the Criminal Code provides that no person shall be convicted of wilfully promoting hatred "if he establishes that the statements communicated were true". This provision is challenged as breaching the presumption of innocence guaranteed in s. 11(d) of the Charter. The Court must therefore decide whether permitting an accused to raise the defence of truth on the balance of probabilities creates a reverse onus, thereby infringing s. 11(d). If s. 11(d) is so infringed, the focus of the inquiry shifts to examine the justifiability of the reverse onus under s. 1 of the Charter.

A. Section 319(3)(a) and Infringement of Section 11(d) of the Charter

In a prosecution under s. 319(2), the Crown must prove beyond a reasonable doubt the various elements of the offence, namely, that the accused, by communicating statements other than in private conversation, wilfully promoted hatred against a group identifiable by colour, race, religion or ethnic origin. Determining whether an accused falls within the terms of s. 319(2) does not require that the trier of fact examine the truth or falsity of the statements. The defence of truth, to be established by the accused on the balance of probabilities, is thus only considered if the Crown proves the components of s. 319(2) beyond a reasonable doubt.

The judgments of the appeal courts in this case and in the accompanying appeal of Andrews reveal a divergence of opinion as to whether s. 11(d) of the Charter is infringed by the truth defence. In the Alberta Court of Appeal, Kerans J.A. viewed as crucial the possibility that an accused can be convicted of wilfully promoting hatred though there exists a reasonable doubt that the statements communicated are true. As the defence places an onus on the accused to prove truth on the balance of probabilities, he thus found it to infringe s. 11(d). In contrast to this conclusion, the Ontario Court of Appeal in R. v. Andrews, supra, found that s. 319(3)(a) does not place a true reverse onus upon the accused. Relying upon the majority judgment in R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 S.C.R. 914, Grange J.A. felt that s. 319(3)(a) provides a defence which becomes applicable only after all elements of the offence have been proven beyond a reasonable doubt, a circumstance which was said to avoid infringing the presumption of innocence (p. 193). Grange J.A. distinguished this Court's decision in R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3, on the grounds that the statutory presumption challenged in that case related to the proof of an essential element of the offence.

It is not overly difficult to settle the disagreement between the Alberta and Ontario Appeal Courts. Though some confusion may have existed after the decision of this Court in Holmes, since Whyte it is clear that the presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt as to guilt in the mind of the trier of fact. As was stated by a unanimous bench in Whyte (at p. 18):

. . . the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.

The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown.

As is evident from the above quotation, the categorization of a factual finding as forming an element "essential" to the offence is of no consequence when determining whether s. 11(d) has been breached.

Applying the approach taken in Whyte to this appeal, it is obvious that s. 319(3)(a) runs afoul of the presumption of innocence. Contrary to the arguments of those who would find s. 319(3)(a) compatible with s. 11(d), it matters not that the defence of truth may be intended to play a minor role in providing relief from conviction. What is of essence is not the "essential nature" of the crime, but that the trier of fact will have to convict even where there is a reasonable doubt as to the truth of an accused's statements. This result means that s. 11(d) is infringed, making necessary an inquiry as to whether s. 319(3)(a) can be justified under s. 1 of the Charter.

B. Justifiability of Section 319(3)(a) Under Section 1 of the Charter

In seeing whether the truth defence is justifiable as a reasonable limit in a free and democratic society, my general comments regarding the role of s. 1 and the Oakes test obviously apply. As well, much of what has been said in discussing s. 319(2) is pertinent, though it remains necessary to undertake a separate inquiry into the validity of s. 319(3)(a)'s reverse onus.

The impetus behind s. 319(3)(a) represents somewhat of a caveat to the broad objectives underlying the offence in s. 319(2). As explored earlier, domestic and international commitments to freedom of expression, equality, and respect for human dignity and multiculturalism lay the foundation for the offence of the wilful promotion of hatred. Without rejecting this broad foundational base, the objective of s. 319(3)(a) is attributable to the importance given the expression of truth by Parliament (see the Cohen Committee, op. cit., at p. 66, and the Law Reform Commission of Canada, op. cit., at p. 36). Specifically, the truth defence allows an accused to escape liability based on the possibility that the statements made, while intended to promote hatred, nonetheless possess increased merit (in relation to free expression values) because of their truthful nature.

That a defence may be warranted by reason of the merit associated with truthful statements does not, however, make clear Parliament's objective in requiring that the accused prove truthfulness on a balance of probabilities. The objective behind the defence's reverse onus is closely connected with the purpose fueling the offence in s. 319(2). Harm is created whenever statements are made with the intention of promoting hatred, whether or not they contain an element of truth. If the defence is too easily used, the pressing and substantial objective of Parliament in preventing such harm will suffer unduly, and it is therefore in the furtherance of that same objective that truthfulness must be proved by the accused on the balance of probabilities. For the reasons given in discussing the purpose behind s. 319(2), I consequently find that Parliament's objective in employing a reverse onus in s. 319(3)(a) is pressing and substantial.

Moving on to examine the proportionality of the reverse onus measure to the legislative objective, the first question to ask is whether s. 319(3)(a) evinces a rational connection to the purpose of preventing the harm caused by hate-promoting expression. In my view, such a connection plainly exists. The reverse onus in the truth defence operates so as to make it more difficult to avoid conviction where the wilful promotion of hatred has been proven beyond a reasonable doubt. As the wilful promotion of hatred is hostile to Parliament's aims, placing such a burden upon the accused is rationally connected to a valid s. 1 objective.

The second component of the proportionality inquiry asks whether the impugned measure impairs the right or freedom as little as possible. Instrumental in reaching a conclusion as to minimal impairment is the nature of the defence in issue, and most especially its relation to the offence set out in s. 319(2). As I have stated in discussing the proportionality of s. 319(2), the defence of truth is in some ways at odds with Parliament's purpose of preventing the damage to target group members and inter-group harmony caused by hate propaganda; it works to excuse the actions of an accused even though the harm sought to be prevented is present. To provide the accused with such an escape route may not be required under the Charter, but neither is it illogical. Out of caution Parliament has made a concession to the importance of truth in freedom of expression values, a concession designed to allow an accused person to benefit from the tangential possibility that his or her statements, though admittedly defamatory of targeted groups, may have some social utility as part of legitimate public dialogue.

In the overall context of the s. 319(2) offence, it is therefore evident that Parliament has used the reverse onus provision to strike a balance between two legitimate concerns. Requiring the accused to prove on the civil standard that his or her statements are true is an integral part of this balance, and any less onerous burden would severely skew the equilibrium. To include falsity as a component of s. 319(2) for example, or even to require only that the accused raise a reasonable doubt as to the truthfulness of the statements, would excessively compromise the effectiveness of the offence in achieving its purpose. The former option would especially hinder Parliament's objective, for many statements are not susceptible to a true/false categorization. In either instance, however, where a reasonable doubt existed as to the falsity of an accused's statements an acquittal would be entered. To accept such a result it would have to be agreed that this relatively small possibility of truthfulness outweighs the harm caused through the wilful promotion of hatred. Yet to my mind the crucial objective of Parliament in this appeal justifies requiring a more convincing demonstration that a hate-monger's statements may be true, as a successful defence provides an excuse despite the presence of the harm sought to be eradicated (see Rauf, op. cit., at pp. 368-69). Having the accused prove truthfulness on the balance of probabilities is an understandable and valid precaution against too easily justifying such harm, and I hence conclude that the reverse onus provision in s. 319(3)(a) represents a minimal impairment of the presumption of innocence.

As for the final segment of the Oakes proportionality inquiry, I have no difficulty in finding that the importance of preventing the harm caused by hate-promoting expression is not outweighed by Parliament's infringement of s. 11(d) of the Charter. In reaching this conclusion I would refer to the approach taken by this Court in Whyte. There, the accused challenged what is now s. 258(1)(a) of the Criminal Code, which creates the presumption that a person in the driver's seat of a vehicle has care or control of the vehicle for the purposes of the impaired driving provisions. This presumption can only be overcome if the accused proves that he or she occupied the driver's seat for some purpose other than setting the vehicle in motion. In upholding the statutory presumption under s. 1, this Court stated the following regarding the proportionality between the effects of the measure and the objective (at p. 27):

. . . [258(1)(a)] satisfies [the] final element in s. 1 analysis. The threat to public safety posed by drinking and driving has been established by evidence in this case and recognized by this Court in others. While [s. 258(1)(a)] does infringe the right guaranteed by s. 11(d) of the Charter, it does so in the context of a statutory setting which makes it impracticable to require the Crown to prove an intention to drive. The reverse onus provision, in effect, affords a defence to an accused which could not otherwise be made available.

In Whyte, the impugned statutory presumption was found to be justified despite its effect upon the presumption of innocence only after an examination of the history of drinking and driving legislation, and a recognition of both the serious societal danger of drinking and driving and the difficulties associated with requiring the Crown to prove an intention to drive. As already noted, similar factors operate to justify the reverse onus provision challenged in this appeal, in particular the significant importance attached to preventing the harm caused by hate-promoting expression and the fact that the truth defence operates despite the presence of such harm. The infringement of s. 11(d) thus occurs in the context of a statutory and practical setting that makes it unworkable to require the Crown to prove the falsity of the statements in issue, and using the words of Whyte I conclude that the reverse onus provision in s. 319(3)(a), in effect, affords a defence to an accused which could not otherwise be made available.

C. Conclusion Respecting Section 319(3)(a)

In sum, having followed this Court's decision in Whyte in deciding that s. 319(3)(a) infringes s. 11(d) of the Charter, I nonetheless find the impugned provision to be justified under s. 1. The reverse onus found in the truth defence represents the only way in which the defence can be offered while still enabling Parliament to prohibit effectively hate-promoting expression through criminal legislation; to require that the state prove beyond a reasonable doubt the falsity of a statement would excuse much of the harmful expressive activity caught by s. 319(2) despite minimal proof as to its worth. In my opinion, justification for this reverse onus must therefore reside in the fact that it only applies where the Crown has proven beyond a reasonable doubt an intent to promote harm-causing hatred, and in the recognition that excessive deference to the possibility that a statement is true will undermine Parliament's objective.

IX. Conclusion

In so far as its purpose is to prohibit the expression of certain meanings, s. 319(2) of the Criminal Code infringes the guarantee of freedom of expression found in s. 2(b) of the Charter. Given the importance of Parliament's purpose in preventing the dissemination of hate propaganda and the tenuous connection such expression has with s. 2(b) values, however, I have found the narrowly drawn parameters of s. 319(2) to be justifiable under s. 1. Similarly, although the reverse onus provision contained in s. 319(3)(a) conflicts with the s. 11(d) presumption of innocence, it can be seen as a justifiable means of excusing truthful statements without undermining the objective of preventing harm caused by the intentional promotion of hatred.

Having come to these conclusions, I answer the constitutional questions in the following manner:

Answer: Yes.

I would thus reverse the decision of the Alberta Court of Appeal and allow the appeal. This case should return to the Court of Appeal in order to resolve those issues left unexamined by reason of its decision to strike down the impugned provisions.

3.1.5. Adam Litpak, "Hate Speech or Free Speech," N.Y. Times (June 11, 2018) (READ all)

Adam Litpak, "Hate Speech or Free Speech," N.Y. Times (June 11, 2018) (READ all)

3.1.6 ICCPR, Articles 18-20 (READ All) 3.1.6 ICCPR, Articles 18-20 (READ All)

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19

1. Everyone shall have the right to hold opinions without interference.

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

3.1.7. International Media Support, "Briefing Note 2: Restrictions on Freedom of Expression," (READ all)

International Media Support, "Briefing Note 2: Restrictions on Freedom of Expression," (READ all)

3.2 [Mar. 12] Intermediary Liability 3.2 [Mar. 12] Intermediary Liability

What are intermediaries?
What is intermediary liability?
Should the liability regime for online intermediaries be different than for real-world intermediaries?
What legal and ethical responsibilities should online intermediaries have for the content they host? Should it matter where they sit in the "protocol stack?"

3.2.1. Stanford Center for Internet and Society, "Intermediary Liability," [READ ALL]

Stanford Center for Internet and Society, "Intermediary Liability," [READ ALL]

3.2.2 Section 230 of the U.S. Communications Decency Act (CDA) of 1996 (47 USC § 230) [READ highlighted passages; SKIM the rest] 3.2.2 Section 230 of the U.S. Communications Decency Act (CDA) of 1996 (47 USC § 230) [READ highlighted passages; SKIM the rest]

(a)Findings

The Congress finds the following:

(1)

The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2)

These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3)

The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4)

The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5)

Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

(b)Policy

It is the policy of the United States—

(1)

to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2)

to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

(3)

to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

(4)

to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and

(5)

to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

(c)Protection for “Good Samaritan” blocking and screening of offensive material

(1)Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2)Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A)

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B)

any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]

(d)Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

(e)Effect on other laws

(1)No effect on criminal law

Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

(2)No effect on intellectual property law

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

(3)State law

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

(4)No effect on communications privacy law

Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.

(5)No effect on sex trafficking law

Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

(A)

any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

(B)

any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or

(C)

any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.

(f)Definitions

As used in this section:

(1)Internet

The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

(2)Interactive computer service

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3)Information content provider

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

(4)Access software providerThe term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

(A)

filter, screen, allow, or disallow content;

(B)

pick, choose, analyze, or digest content; or

(C)

transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

3.2.3 Hassell v. Byrd, 5 Cal.5th 522 (2018) [READ EXCERPTS] 3.2.3 Hassell v. Byrd, 5 Cal.5th 522 (2018) [READ EXCERPTS]

5 Cal.5th 522 (2018)

DAWN L. HASSELL et al., Plaintiffs and Respondents,
v.
AVA BIRD, Defendant;
YELP INC., Objector and Appellant.

No. S235968.

Supreme Court of California.

July 2, 2018.

Appeal from the Superior Court of San Francisco County, Super. Ct. No. CGC 13530525, Donald J. Sullivan, Judge.

Ct.App. 1/4 A143233.

Review Granted 247 Cal.App.4th 1336.

Aaron Schur; Davis Wright Tremaine, Thomas R. Burke, Deborah A. Adler and Rochelle L. Wilcox for Objector and Appellant.

Wilmer Cutler Pickering Hale and Dorr, Patrick J. Carome, Ari Holtzblatt and Mark D. Flanagan for Airbnb, Inc., Automattic Inc., craigslist, Inc., Facebook, Inc., IAC/InterActiveCorp, Reddit, Inc., Snap Inc., Pinterest, Inc., Thumbtack, Inc., Twitter, Inc., and Yahoo! Inc., as Amici Curiae on behalf of Objector and Appellant.

J. Joshua Wheeler; Katie Townsend, Bruce D. Brown, Gregg P. Leslie and Ariel B. Glickman for The Reporters Committee for Freedom of the Press, The Thomas Jefferson Center for the Protection of Free Expression, American Society of News Editors, Association of Alternative Newsmedia, BuzzFeed, The E.W. Scripps Company, International Documentary Association, Investigative Reporting Workshop at American University, The McClatchy Company, Media Law Resource Center, MPA-The Association of Magazine Media, National Press Photographers Association, News Media Alliance, Online News Association, Radio Television Digital News Association, Reporters Without Borders, The Seattle Times Company, Society of Professional Journalists, Student Press Law Center and Tully Center for Free Speech as Amici Curiae on behalf of Objector and Appellant.

Wilson Sonsini Goodrich & Rosati, David H. Kramer, Shelby Pasarell Tsai, Brian M. Willen and Jason B. Mollick for Google Inc., as Amicus Curiae on behalf of Objector and Appellant.

NYU Technology Law & Policy Clinic and Jason M. Schultz for Change.org, Engine, GitHub, Inc., A Medium Corporation, Patreon, Inc., SiteJabber and Wikimedia Foundation, Inc., as Amici Curiae on behalf of Objector and Appellant.

Public Citizen Litigation Group, Paul Alan Levy; Juelsgaard Intellectual Property and Innovation Clinic, Phillip R. Malone, Jef Pearlman, Daniel Chao and Erica Sollazzo for Public Citizen, Inc., and Floor64, Inc., as Amici Curiae on behalf of Objector and Appellant.

Greenberg Traurig, Ian C. Ballon and Lori Chang for Glassdoor, Inc., and TripAdvisor LLC as Amici Curiae on behalf of Objector and Appellant.

Horvitz & Levy, Jeremy B. Rosen, Scott P. Dixler and Matthew C. Samet for ACLU of Northern California, ACLU of San Diego & Imperial Counties, ACLU of Southern California, Avvo, California Anti-SLAPP Project, 526 *526 Electronic Frontier Foundation, First Amendment Coalition and Public Participation Project as Amici Curiae on behalf of Objector and Appellant.

University of Arizona College of Law and Jane Yakowitz Bambauer for First Amendment and Internet Law Scholars as Amici Curiae on behalf of Objector and Appellant.

Fenwick & West, Andrew P. Bridges, Tyler G. Newby, Guinevere Jobson and Armen N. Nercessian for Internet Association and Consumer Technology Association as Amici Curiae on behalf of Objector and Appellant.

Brown White & Osborn, Kenneth P. White and Evelina Gentry for Ava Bird as Amicus Curiae on behalf of Objector and Appellant.

Anette J. Beebe; Gingras Law Office and David S. Gingras for XCentric Ventures, LLC as Amicus Curiae on behalf of Objector and Appellant.

Scott & Cyan Banister First Amendment Clinic at UCLA School of Law and Eugene Volokh as Amici Curiae on behalf of Objector and Appellant.

Duckworth Peters Lebowitz Olivier, Monique Olivier and J. Erick Heath for Plaintiffs and Respondents.

Harder Mirell & Abrams, Douglas E. Mirell, Charles J. Harder and Dilan E. Esper for Erwin Chemerinsky, Valencia Corridor Merchants Association, Derik Lewis, Aaron Morris and Henry Karnilowicz as Amici Curiae on behalf of Plaintiffs and Respondents.

525 *525 OPINION

CANTIL-SAKAUYE, C. J. —

In this case, we consider the validity of a court order, entered upon a default judgment in a defamation case, insofar as it directs appellant Yelp Inc. (Yelp) to remove certain consumer reviews posted on its website. Yelp was not named as a defendant in the underlying lawsuit, brought by plaintiffs Dawn L. Hassell and the Hassell Law Group, and did not participate in the judicial proceedings that led to the default judgment. Instead, Yelp became involved in this litigation only after being served with a copy of the aforementioned judgment and order.

Yelp argues that, to the extent the removal order would impose upon it a duty to remove these reviews, the directive violates its right to due process under the federal and state Constitutions because it was issued without proper notice and an opportunity to be heard. Yelp also asserts that this aspect of the 527 *527 order is invalid under the Communications Decency Act of 1996, relevant provisions of which (found at 47 U.S.C. § 230; hereinafter referred to as section 230)^[1] relate, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (§ 230(c)(1)), and, "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section" (§ 230(e)(3)).

The Court of Appeal rejected Yelp's arguments. We reverse. The Court of Appeal erred in regarding the order to Yelp as beyond the scope of section 230. That court reasoned that the judicial command to purge the challenged reviews does not impose liability on Yelp. But as explained below, the Court of Appeal adopted too narrow a construction of section 230. In directing Yelp to remove the challenged reviews from its website, the removal order improperly treats Yelp as "the publisher or speaker of ... information provided by another information content provider." (§ 230(c)(1).) The order therefore must be revised to comply with section 230.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, defendant Ava Bird approached the Hassell Law Group, owned by Dawn Hassell (who is hereinafter referred to as Hassell), to represent her in a personal injury matter. That August, Bird and the law firm entered into a representation agreement. After e-mail exchanges and communication difficulties led Hassell to conclude that Bird was unhappy with the firm's performance, the Hassell Law Group withdrew from representation in September 2012. Hassell notified Bird of this decision via e-mail.

Several months later, on January 28, 2013, a one-star (out of five) review of the Hassell Law Group appeared on Yelp. This website, available to anyone with Internet access, provides a forum for reviews and ratings of businesses and other entities. Individuals with Yelp accounts author the reviews and issue the ratings. Individual reviews and ratings appear on the Yelp website together with the author's Yelp user name and location. A reviewed business may post a public response to a user review; this response will appear directly below the review on Yelp's website. Yelp also combines individual ratings into an aggregate rating for each business.

The one-star review was posted by Yelp user "Birdzeye B." from Los Angeles, California. It provided in full (with the spelling, spacing, capitalization, and punctuation in this and all other quoted reviews per the originals) as follows: "well, here is another business that doesn't even deserve one star. 528 *528 basically, dawn hassell made a bad situation much worse for me. she told me she could help with my personal injury case from falling through a floor, then reneged on the case because her mom had a broken leg, or something like that, and that the insurance company was too much for her to handle. and all of this after i met with her office (not her personally, she was nowhere to be found) signed paperwork to `hire' them and gained confidence in her office (due mostly to yelp reviews) so, in all fairness, i have to share my experience so others can be forewarned. she will probably not do anything for you, except make your situation worse. in fact, after signing all the paperwork with her office, like a broken record, they repeated `DO NOT TALK TO THE INSURANCE COMPANY' over and over and over. and over and over. so I honored that and did not speak to them. but the hassell law group didn't ever speak with the insurance company either, neglecting their said responsibilities and not living up to their own legal contract! nor did they bother to communicate with me, the client or the insurance company AT ALL. then, she dropped the case because of her mother and seeming lack of work ethic. (a good attorney wont do this, in fact, they aren't supposed to) to save your case, STEER CLEAR OF THIS LAW FIRM! and research around to find a law firm with a proven track record of success, a good work ethic, competence and long term client satisfaction. there are many in the bay area and with some diligent smart interviewing, you can find a competent attorney, but this wont be one of them."

Hassell believed Bird to be the author of this review, and sent her an e-mail. Hassell wrote Bird that "[y]ou are certainly free to write a review about your experience and provide constructive feedback. But slandering someone and intentionally trying to damage their business and reputation is illegal." Disputing statements in the review, Hassell requested that Bird remove or revise it, and wrote that "[i]f you are unwilling to talk to me or respond, I will assume you don't intend to work this out [with] me directly and I will retain a defamation attorney this week to file a legal action against you for slander and defamation." Bird responded with a lengthy e-mail of her own, in which she stated that Hassell would "have to accept the permanent, honest review [I] have given you."

Shortly thereafter, on February 6, 2013, another one-star review of the Hassell Law Group was posted on Yelp. This review was from the user "J.D.," identified as hailing from Alameda, California. It provided in full as follows: "Did not like the fact that they charged me their client to make COPIES, send out FAXES, POSTAGE, AND FOR MAKING PHONE CALLS about my case!!! Isn't that your job. That's just ridiculous!!! They Deducted all those expenses out of my settlement."

On April 10, 2013, plaintiffs filed suit against Bird in San Francisco Superior Court. The verified complaint alleged that Bird wrote both of the 529 *529 previously discussed reviews, that these reviews were libelous, and that in posting the reviews, Bird cast plaintiffs in a false light and intentionally inflicted emotional distress upon Hassell. Plaintiffs sought general, special, and punitive damages, as well as "injunctive relief prohibiting Defendant Ava Bird from continuing to defame plaintiffs as complained of herein, and requiring Defendant Ava Bird to remove each and every defamatory review published by her about plaintiffs, from Yelp.com and from anywhere else they appear on the internet." Yelp was not named as a defendant. At oral argument before this court, counsel for plaintiffs candidly acknowledged that this omission was intentional. Plaintiffs anticipated that if they added Yelp as a defendant and integrated the company into the action at that time, Yelp could respond by asserting immunity under section 230.

After several attempts at personal service failed, plaintiffs effected substitute service. On April 17, 2013, the summons and complaint were left with another individual at the address where Bird was believed to reside. In November 2013, with Bird not yet having appeared in the case, plaintiffs moved for entry of a default judgment. In the interim, "Birdzeye B." had posted on Yelp an "update" of her review of the Hassell Law Group. This update (which henceforth will be described as a review), dated April 29, 2013, provided as follows: "here is an update on this review. dawn hassell has filed a lawsuit against me over this review I posted on yelp! she has tried to threaten, bully, intimidate, harass me into removing the review! she actually hired another bad attorney to fight this. lol! well, looks like my original review has turned out to be truer than ever! avoid this business like the plague folks! and the staff at YELP has stepped up and is defending my right to post a review. once again, thanks YELP! and I have reported her actions to the Better Business Bureau as well, so they have a record of how she handles business. another good resource is the BBB, by the way."

In a declaration filed in support of the request for a default judgment, Hassell explained that she had connected the January 2013 review to Bird "[b]ased on the poster's user name being similar to Ms. Bird's real name and the details such as `falling through a floor.'" Hassell also averred that the review from "J.D." had been written by Bird. She further related that since the first of the challenged reviews had been posted, the Hassell Law Group had seen a significant decrease in user activity on Yelp that suggested interest in the firm, and that as a result of this review, its overall Yelp rating had dropped to 4.5 stars.

A "prove-up" evidentiary hearing was held on January 14, 2014.^[2] Hassell was sworn as a witness and gave testimony at this session. After the hearing, 530 *530 the court entered judgment in favor of plaintiffs, awarding general and special damages and costs totaling $557,918.85. The court also ordered Bird "to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from Yelp.com and from anywhere else they appear on the internet within 5 business days of the date of the court's order." The court's order also provides that Bird, and "her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website." Finally, the order states that "Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names `Birdzeye B.' and `J.D.' attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court's order." Exhibit A includes the January 2013 and April 2013 reviews by "Birdzeye B.," and the February 2013 review by "J.D."^[3]

Yelp was served with a copy of the default judgment later that month.^[4] In response, Yelp's in-house counsel wrote Hassell a letter that identified several perceived deficiencies with the judgment and removal order. The letter accordingly advised that "Yelp sees no reason at this time to remove the reviews at issue." The letter added that Yelp reserved the right to revisit this decision if it were to receive additional facts responsive to its concerns. Hassell was told that if an action were pursued against Yelp premised on its publication of the reviews, Yelp would "promptly seek dismissal of such action and its attorneys' fees under California's anti-SLAPP law." (See Code Civ. Proc., § 425.16.) Hassell responded by letter dated April 30, 2014, explaining her position and asking Yelp to reconsider and remove the reviews.

The next month, Yelp filed a motion to set aside and vacate the judgment. In its supporting brief, Yelp argued that to the extent the order to remove the posts was aimed at it, the directive violated Yelp's due process rights, exceeded the scope of relief requested in the complaint, and was barred by 531 *531 section 230. Yelp also argued that Hassell had not given proper notice of the action to Bird, nor connected the challenged reviews to Bird sufficiently to justify an injunction.^[5] Yelp requested that the default judgment be set aside and vacated in its entirety, or in the alternative, "modified to eliminate all provisions that compel Yelp to act in any manner, or restrain Yelp from engaging in any conduct."

The superior court denied the motion to set aside and vacate the judgment. In its order denying the motion, the court quoted this court's generic assessment that "`[i]n matters of injunction ... it has been a common practice to make the injunction run also to classes of persons through whom the enjoined person may act, such as agents, servants, employees, aiders, abettors, etc., though not parties to the action, and this practice has always been upheld by the courts.'" (Ross v. Superior Court (1977) 19 Cal.3d 899, 906 [141 Cal.Rptr. 133, 569 P.2d 727].) The superior court applied this principle to the present case because, in the court's view, there was a "factual basis to support Hassell's contention that Yelp is aiding and abetting Bird's violation of the injunction." As evidence of this aiding and abetting, the superior court noted that "Yelp highlighted at least one of Bird's defamatory reviews by featuring it as a `Recommended Review,'" that "a litany of favorable reviews are not factored into the Hassell Law [Group]'s star rating, appearing to give emphasis to Bird's defamatory review," that Yelp was moving "to set aside the judgment in its entirety, including the portions of the judgment that pertain only to Bird," and otherwise was advancing arguments "on Bird's behalf," and that "notwithstanding a judicial finding that Bird's reviews are defamatory, Yelp refuses to delete them."

Yelp appealed. It reasserted on appeal that the order, to the extent that it commanded Yelp to remove the challenged reviews, violated the company's due process rights, as well as section 230. (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1341, 1355, 1361 [203 Cal.Rptr.3d 203], review granted Sept. 21, 2016, S235968.)^[6] The Court of Appeal rejected both arguments. It first found no due process violation in allowing the injunction to run against Yelp. As had the superior court, the Court of Appeal regarded Yelp as being among the actors to whom the injunction could properly extend, even though it was not a party to the proceedings that led to the injunction. (Hassell v. Bird, 532 *532 at pp. 1355-1357.) The Court of Appeal also found no merit in Yelp's related argument that, regardless of whether an injunction normally can run against nonparties, the injunction here could not properly extend to it because such a reach would unduly limit the dissemination of speech. The Court of Appeal questioned the premise of this argument, opining that "it appears to us that the removal order does not treat Yelp as a publisher of Bird's speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews." (Id., at p. 1358.) The Court of Appeal also observed that in Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141 [57 Cal.Rptr.3d 320, 156 P.3d 339], this court ruled that "`an injunction issued following a trial that determined that the defendant defamed the plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and does not offend the First Amendment.'" (Hassell v. Bird, at p. 1360, quoting Balboa Island, at p. 1148.) The Court of Appeal concluded that "[u]nder the authority of Balboa Island ... the trial court had the power to make the part of this order requiring Yelp to remove the three specific statements ... because the injunction prohibiting Bird from repeating those statements was issued following a determination at trial that those statements are defamatory." (Hassell v. Bird, at p. 1360.)

Turning to Yelp's section 230 argument, the Court of Appeal recognized that "section 230 has been construed broadly to immunize `providers of interactive computer services against liability arising from content created by third parties'" (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1361, rev. granted, quoting Fair Housing Council of San Fernando Valley v. Roommates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1162, fn. omitted), and that in Barrett v. Rosenthal (2006) 40 Cal.4th 33 [51 Cal.Rptr.3d 55, 146 P.3d 510] (Barrett), this court similarly regarded section 230 as, in the words of the Court of Appeal, "afford[ing] interactive service providers broad immunity from tort liability for third party speech" (Hassell v. Bird, at p. 1362). The Court of Appeal further acknowledged that "section 230 also `precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.'" (Id., at pp. 1361-1362, quoting Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran).)

The Court of Appeal nevertheless determined that section 230 does not prohibit a directive that Yelp remove the challenged reviews. The court reasoned that "[t]he removal order does not violate ... section 230 because it does not impose any liability on Yelp. In this defamation action, [plaintiffs] filed their complaint against Bird, not Yelp; obtained a default judgment 533 *533 against Bird, not Yelp; and [were] awarded damages and injunctive relief against Bird, not Yelp." (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1363, rev. granted.)

The Court of Appeal recognized that other courts (e.g., Kathleen R. v. City of Livermore (2001) 87 Cal.App.4th 684 [104 Cal.Rptr.2d 772] (Kathleen R.); Noah v. AOL Time Warner Inc. (E.D.Va. 2003) 261 F.Supp.2d 532; Smith v. Intercosmos Media Group, Inc. (E.D.La., Dec. 17, 2002, No. 02-1964) 2002 WL 31844907; Medytox Solutions, Inc. v. Investorshub.com, Inc. (Fla.Dist.Ct.App. 2014) 152 So.3d 727) had construed section 230 immunity as extending to claims for injunctive relief. (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1364, rev. granted.) But the Court of Appeal regarded those cases as inapposite because they involved situations in which section 230 immunity had been interposed by a named party at a stage of the proceedings when the cases merely involved allegations of improper conduct by a third party, "and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider's Web site" in a case filed against only the third party. (Hassell v. Bird, at pp. 1364-1365.) The court also rejected the argument that the prospect of contempt sanctions would amount to "liability" under the statute. (Id., at p. 1365.) According to the Court of Appeal, "sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content." (Ibid.)

The Court of Appeal thus affirmed the superior court's order denying Yelp's motion to set aside and vacate the judgment, albeit with instructions to the superior court to modify the order on remand so that it compelled only the removal of the three challenged reviews. (Hassell v. Bird, supra, 247 Cal.App.4th at pp. 1365-1366, rev. granted.)^[7] We granted review.

II. DISCUSSION

(1) Before this court, Yelp renews the constitutional and statutory arguments it raised before the Court of Appeal. Namely, Yelp maintains that the removal order does not comport with due process insofar as it directs Yelp to remove the three reviews at issue without affording prior notice and an opportunity to be heard. Yelp also claims that this aspect of the order violates section 230 by treating it as "the publisher or speaker of ... information 534 *534 provided by another information content provider." (§ 230(c)(1); see also § 230(e)(3).) Because the statutory argument is dispositive, there is no need to address the due process question. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102 [171 Cal.Rptr.3d 189, 324 P.3d 50] ["[o]ur jurisprudence directs that we avoid resolving constitutional questions if the issue may be resolved on narrower grounds"]; Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231 [45 Cal.Rptr.2d 207, 902 P.2d 225].)

A. Section 230

Section 230 appears within the Communications Decency Act of 1996,^[8] enacted as title V of the Telecommunications Act of 1996 (Pub.L. No. 104-104 (Feb 8, 1996) 110 Stat. 56). Congress enacted section 230 "for two basic policy reasons: to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material." (Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1122; see also Barrett, supra, 40 Cal.4th at pp. 50-54 [reviewing the legislative history of § 230].) One of the impetuses for section 230 was a judicial decision opining that because an operator of Internet bulletin boards had taken an active role in policing the content of these fora, for purposes of defamation law it could be regarded as the "publisher" of material posted on these boards by users. (Stratton Oakmont, Inc. v. Prodigy Services Co. (N.Y.Sup.Ct. 1995) 23 Media L.Rep. 1794 [1995 WL 323710]; see also Barrett, supra, 40 Cal.4th at pp. 50-53.)

Section 230 begins with a series of findings and policy declarations. The findings include, "The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens" (§ 230(a)(1)), and, "The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation" (§ 230(a)(4)). The policies include the goals "to promote the continued development of the Internet and other interactive computer services and other interactive media" (§ 230(b)(1)), and "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation" (§ 230(b)(2)).

Implementing these views, section 230(c)(1) provides, "No provider or user of an interactive computer service shall be treated as the publisher or 535 *535 speaker of any information provided by another information content provider."^[9] Section 230(e)(3), meanwhile, relates in relevant part, "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Section 230 defines an "`interactive computer service'" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." (§ 230(f)(2).) The term "`information content provider,'" meanwhile, "means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." (§ 230(f)(3).)

B. Judicial Construction of Section 230

(2) The immunity provisions within section 230 "have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source." (Barrett, supra, 40 Cal.4th at p. 39; accord, Doe v. MySpace Inc. (5th Cir. 2008) 528 F.3d 413, 418 ["[c]ourts have construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content"]; Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at p. 1123 ["reviewing courts have treated § 230(c) immunity as quite robust"].) Although a full review of the substantial body of case law interpreting section 230 is unnecessary to resolve this case, an overview of certain leading decisions follows.

1. Zeran

Section 230 was the subject of an early and influential construction in Zeran, supra, 129 F.3d 327. (See Barrett, supra, 40 Cal.4th at p. 41 [describing Zeran as "[t]he leading case on section 230 immunity"].) The lawsuit in Zeran involved messages posted on an America Online, Inc. (AOL), online bulletin board. (Zeran, at p. 329.) These messages promoted T-shirts, bumper stickers, and key chains bearing offensive content, and added 536 *536 that anyone interested in purchasing one of these items should contact the plaintiff at his home phone number. (Ibid.) As a result of these posts, the plaintiff — who in fact had no connection to the wares — was inundated by angry phone calls, including death threats. (Ibid.) The plaintiff subsequently brought a negligence claim against AOL, alleging that AOL took an unreasonably long time to remove the messages, "refused to post retractions of those messages, and failed to screen for similar postings thereafter." (Id., at p. 328.)

AOL claimed immunity under section 230. (Zeran, supra, 129 F.3d at p. 328.) In affirming a grant of judgment on the pleadings entered in favor of AOL on this ground (id., at p. 330), the federal court of appeals in Zeran emphasized the broad parameters of the statutory grant of immunity. The court observed, "By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred." (Ibid.) The Zeran court continued, "The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum." (Ibid.)

The plaintiff in Zeran, supra, 129 F.3d 327, argued that section 230 should be read narrowly, so that AOL could be held liable as a "distributor" of the online posts. (Zeran, at pp. 331-332.) In rejecting this limited view of section 230 immunity, the Zeran court stressed that if the notice-based legal standard for defamation liability that applies to distributors of printed information was transplanted to the Internet, it would place online intermediaries in an untenable position. "If computer service providers were subject to distributor liability," the court observed, "they would face potential liability each time they receive notice of a potentially defamatory statement — from any party, concerning any message. Each notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information's defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information. Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context." 537 *537 (Zeran, at p. 333.) In the same vein, the court also stressed that "notice-based liability for interactive computer service providers would provide third parties with a no-cost means to create the basis for future lawsuits. Whenever one was displeased with the speech of another party conducted over an interactive computer service, the offended party could simply `notify' the relevant service provider, claiming the information to be legally defamatory." (Ibid.)

2. Kathleen R.

Other courts have followed Zeran in adopting a broad view of section 230's immunity provisions. (See Barrett, supra, 40 Cal.4th at p. 39.) Several decisions by the Courts of Appeal of this state, for example, have advanced a similar understanding of section 230. (See, e.g., Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 567-575 [96 Cal.Rptr.3d 148] [§ 230 immunity applies to tort claims against a social networking website, brought by minors who claimed that they had been assaulted by adults they met on that website]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804-808 [52 Cal.Rptr.3d 376] [§ 230 immunity applies to tort claims against an employer that operated an internal computer network used by an employee to allegedly communicate threats against the plaintiff]; Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 828-836 [121 Cal.Rptr.2d 703] [§ 230 immunity applies to tort and statutory claims against an auction website, brought by plaintiffs who allegedly purchased forgeries from third party sellers on the website].)

Among the decisions of the Courts of Appeal construing section 230, the ruling in Kathleen R., supra, 87 Cal.App.4th 684, is particularly relevant here, for as recognized by the Court of Appeal below, the court in Kathleen R. held that section 230 immunity extends to claims for injunctive relief.

The plaintiff in Kathleen R., supra, 87 Cal.App.4th 684, filed suit against a city after her son, a minor, used computers at the city library to download sexually explicit photos from the Internet. (Id., at p. 690.) She brought claims under state and federal law. (Id., at p. 691.) The plaintiff sought injunctive relief in connection with all of her causes of action, with her state law claims seeking to prevent the city "from acquiring or maintaining computers which allow people to access obscenity or minors to access harmful sexual matter; from maintaining any premises where minors have that ability; and from expending public funds on such computers." (Ibid.)

The court in Kathleen R., supra, 87 Cal.App.4th 684 held that section 230 barred all of the plaintiff's state law claims even insofar as they sought 538 *538 injunctive relief.^[10] (Kathleen R., at p. 698.) In reaching this result, the court expressly rejected the plaintiff's position that section 230 immunity does not adhere to the extent that a plaintiff pursues declaratory or injunctive relief, as opposed to damages. (Kathleen R., at p. 698.) The court reasoned, "Section 230 provides broadly that `[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.' (§ 230(e)(3), italics added.) Thus, even if for purposes of section 230 `liability' means only an award of damages [citation], the statute by its terms also precludes other causes of action for other forms of relief." (Kathleen R., at p. 698.) The court also observed that the plaintiff's pursuit of injunctive relief, if it came to fruition, could "prevent [the city] from providing open access to the Internet on its library computers," which would "contravene section 230's stated purpose of promoting unfettered development of the Internet no less than her damage claims." (Ibid.)

3. Barrett

In the one prior occasion we have had to construe section 230, we, too, have read its provisions as conferring broad immunity.

In Barrett, supra, 40 Cal.4th 33, the plaintiffs sued for defamation after the defendant posted copies of an assertedly libelous article on two websites. (Id., at pp. 40-41.) The defendant had received the article from another individual via an e-mail. (Id., at p. 41.)

In vacating an order entered by the superior court, which had granted the defendant's motion to strike under the anti-SLAPP statute, the Court of Appeal in Barrett adopted the same narrow reading of the word "publisher" within section 230(c)(1) that had been rejected by the court in Zeran — i.e., it construed section 230 as being concerned only with preventing online intermediaries from being held liable under standards applicable to publishers, while leaving distributor liability, where appropriate, intact. In the view of the Court of Appeal in Barrett, when the defendant in that case reposted the article she had received from another online source, she acted as a distributor of this information. (Barrett, supra, 40 Cal.4th at p. 39.) This designation meant that the defendant could be held liable if she distributed a defamatory statement with notice of its libelous character. (Id., at pp. 39, 41, 44-45.)

We reversed. Our unanimous majority opinion in Barrett, supra, 40 Cal.4th 33, rejected both the Court of Appeal's interpretation of the term "publisher" 539 *539 within section 230(c)(1), and a comparably constrained construction of the term "user" within that same subsection that would distinguish between "passive" users who could claim section 230 immunity and "active" users who could not. (Barrett, at p. 63.) As had the Zeran court, we declined to read section 230(c)(1) as leaving Internet intermediaries subject to liability on the same terms applicable to distributors of printed material. Instead, we endorsed as "sound" Zeran's construction of "publisher" (Barrett, at p. 48), and adopted a similarly "inclusive" interpretation of that word (id., at p. 49). We observed, "the terms of section 230(c)(1) ... reflect the intent to promote active screening by service providers of online content provided by others. Congress implemented its intent ... by broadly shielding all providers from liability for `publishing' information received from third parties. Congress contemplated self-regulation, rather than regulation compelled at the sword point of tort liability." (Id., at p. 53, fn. omitted.) Later, we reiterated that section 230 confers "blanket immunity from tort liability for online republication of third party content." (Barrett, at p. 57.)^[11]

Our analysis in Barrett, supra, 40 Cal.4th 33, also elaborated upon Congress's intent in enacting section 230, and the practical consequences associated with a cramped construction of the statute. We explained, "It is inaccurate to suggest that Congress was indifferent to free speech protection when it enacted section 230," given the statute's many findings extolling the value of Internet speech and evincing legislators' interest in further development of this forum. (Barrett, at p. 56.) We also noted that "[t]he provisions of section 230(c)(1), conferring broad immunity on Internet intermediaries, are themselves a strong demonstration of legislative commitment to the value of maintaining a free market for online expression." (Ibid.) A limited construction of section 230 would conflict with Congress's goal of facilitating online discourse, we observed, because "subjecting Internet service providers and users to defamation liability" for the republication of online content — even under the standards applicable to distributors — "would tend to chill online speech." (Barrett, at p. 56, citing Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at pp. 1123-1124; Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1027-1028; Noah v. AOL Time Warner Inc., supra, 261 F.Supp.2d at p. 538; Blumenthal v. Drudge (D.D.C. 1998) 992 F.Supp. 44, 52; Donato v. Moldow (2005) 374 N.J. Super. 475 [865 A.2d 711, 726].) This chilling effect could materialize for reasons including the fact that "[a]ny investigation of a potentially defamatory Internet posting is ... a daunting and expensive challenge." (Barrett, at p. 57.)

540 *540 In closing, our opinion in Barrett, supra, 40 Cal.4th 33, voiced some qualms about the result it reached. It explained that "[w]e share the concerns of those who have expressed reservations about the Zeran court's broad interpretation of section 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications." (Id., at pp. 62-63.) But, we added, these concerns were of no legal consequence, because the tools of statutory interpretation compelled a broad construction of section 230. (Barrett, at p. 63.)

C. Analysis

(3) In construing section 230, we apply our standard approach to statutory interpretation. "`When we interpret a statute, "[o]ur fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." [Citation.] "Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose."' [Citation.]" (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616-617 [214 Cal.Rptr.3d 274, 389 P.3d 848].)

Our analysis of the statute begins with an uncontroversial observation: Yelp could have promptly sought and received section 230 immunity had plaintiffs originally named it as a defendant in this case. There is no doubt that Yelp is a "provider or user of an interactive computer service" within the meaning of section 230(c)(1) (see Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1101 [concluding that as an operator of a website, Yahoo acts as a provider of an interactive computer service]), or that the substance of the reviews was provided to Yelp by "another information content provider" (§ 230(c)(1); see Shiamili v. Real Estate Group of New York, Inc. (2011) 17 N.Y.3d 281 [929 N.Y.S.2d 19, 952 N.E.2d 1011, 1019-1020]). Had plaintiffs' claims for defamation, intentional infliction of emotional distress, and false light been alleged directly against Yelp, these theories would be readily understood as treating Yelp as the "publisher or speaker" of the challenged reviews. (See, e.g., Barrett, supra, 40 Cal.4th at p. 63 [§ 230 applies to claims for defamation]; Bennett v. Google, LLC (D.C. Cir. 2018) 882 F.3d 1163, 1164, 541 *541 1168 [§ 230 applies to claims for intentional infliction of emotional distress]; Jones v. Dirty World Entertainment Recordings LLC (6th Cir. 2014) 755 F.3d 398, 402, 417 [§ 230 applies to claims for defamation, intentional infliction of emotional distress, and false light].) This immunity, moreover, would have shielded Yelp from the injunctive relief that plaintiffs seek. (See Kathleen R., supra, 87 Cal.App.4th at p. 697; Noah v. AOL Time Warner Inc., supra, 261 F.Supp.2d at pp. 539-540; Smith v. Intercosmos Media Group, Inc., supra, 2002 WL 31844907 at pp. *4-*5; Medytox Solutions, Inc. v. Investorshub.com, Inc., supra, 152 So. 3d at p. 731.)

The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs' litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no.

(4) Even though plaintiffs did not name Yelp as a defendant, their action ultimately treats it as "the publisher or speaker of ... information provided by another information content provider." (§ 230(c)(1).) With the removal order, plaintiffs seek to overrule Yelp's decision to publish the three challenged reviews. Where, as here, an Internet intermediary's relevant conduct in a defamation case goes no further than the mere act of publication — including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous — section 230 prohibits this kind of directive. (See Barrett, supra, 40 Cal.4th at pp. 48, 53; Zeran, supra, 129 F.3d at p. 330 [under § 230, "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred"]; Medytox Solutions, Inc. v. Investorshub.com, Inc., supra, 152 So.3d at p. 731 ["[a]n action to force a website to remove content on the sole basis that the content is defamatory is necessarily treating the website as a publisher, and is therefore inconsistent with section 230"].)^[12]

542 *542 (5) Plaintiffs assert in their briefing that "Yelp's duty to comply [with the removal order] does not arise from its status as a publisher or speaker, but as a party through whom the court must enforce its order." To plaintiffs, "the removal order simply prohibits Yelp from continuing to be the conduit through which Bird violates her injunction." Just as other courts have rebuffed attempts to avoid section 230 through the "`creative' pleading" of barred claims (Kimzey v. Yelp! Inc. (9th Cir. 2016) 836 F.3d 1263, 1266), we are not persuaded by plaintiffs' description of the situation before the court. It is true that plaintiffs obtained a default judgment and injunction in a lawsuit that named only Bird as a defendant. And it is also true that as a general rule, when an injunction has been obtained, certain nonparties may be required to comply with its terms. (See, e.g., Ross v. Superior Court, supra, 19 Cal.3d at p. 906.) But this principle does not supplant the inquiry that section 230(c)(1) requires. Parties and nonparties alike may have the responsibility to comply with court orders, including injunctions. But an order that treats an Internet intermediary "as the publisher or speaker of any information provided by another information content provider" nevertheless falls within the parameters of section 230(c)(1). (Cf. Giordano v. Romeo (Fla.Dist.Ct.App. 2011) 76 So.3d 1100, 1102 [recognizing that an online intermediary may claim § 230 immunity from injunctive relief associated with a defamation claim, notwithstanding a lower-court determination that at least part of the challenged online post was defamatory].) In substance, Yelp is being held to account for nothing more than its ongoing decision to publish the challenged reviews. Despite plaintiffs' generic description of the obligation they would impose on Yelp, in this case this duty is squarely derived from "the mere existence of the very relationship that Congress immunized from suit." (Klayman v. Zuckerberg (D.C. Cir. 2014) 753 F.3d 1354, 1360.)^[13]

At the same time, we recognize that not all legal duties owed by Internet intermediaries necessarily treat them as the publishers of third party content, 543 *543 even when these obligations are in some way associated with their publication of this material. (See, e.g., Barnes v. Yahoo!, Inc., supra, 570 F.3d at p. 1107 [regarding § 230 immunity as inapplicable to a claim of promissory estoppel alleging that an Internet intermediary promised to remove offensive content].) In this case, however, Yelp is inherently being treated as the publisher of the challenged reviews, and it has not engaged in conduct that would take it outside section 230's purview in connection with the removal order. The duty that plaintiffs would impose on Yelp, in all material respects, wholly owes to and coincides with the company's continuing role as a publisher of third party online content.

In his dissent, Justice Cuéllar argues that even if the injunction cannot on its face command Yelp to remove the reviews, the removal order nevertheless could run to Yelp through Bird under an aiding and abetting theory premised on conduct that remains inherently that of a publisher. (See dis. opn. of Cuéllar, J., post, at pp. 567, 579-580, 588-590.) We disagree. As applied to such behavior, Justice Cuéllar's approach would simply substitute one end run around section 230 immunity for another. (Accord, Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563, 568.) As for the other scenarios involving materially different types of conduct that Justice Cuéllar might hypothesize, such as conspiracies between a named party and an Internet republisher who has not been named as a party, it suffices for now to say that they are not before this court, and we have no occasion to consider whether they could lead to some remedy vis-à-vis the republisher.^[14]

544 *544 Plaintiffs also assert that Yelp cannot claim section 230 immunity because, under section 230(e)(3), no "cause of action" has been alleged directly against it as a defendant, and in their view making Yelp subject to an injunction does not amount to the imposition of "liability." This argument reads constraining force into the language within section 230(e)(3) that provides, "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." This phrasing does not provide strong support for, much less compel, plaintiffs' construction. Section 230(e)(3) does not expressly demand that a cause of action always must be alleged directly against an Internet intermediary as a named defendant for the republisher to claim immunity under the statute. And in common legal parlance at the time of section 230's enactment, "liability" could encompass more than merely the imposition of damages. (See Black's Law Dict. (6th ed. 1990) p. 914 [defining "liability" as "a broad legal term" that "has been referred to as of the most comprehensive significance, including almost every character of hazard or responsibility, absolute, contingent, or likely"].)^[15]

(6) Even more fundamentally, plaintiffs' interpretation misses the forest for the trees. Section 230(e)(3) underscores, rather than undermines, the broad scope of section 230 immunity by prohibiting not only the imposition of "liability" under certain state law theories, but also the pursuit of a proscribed "cause of action." (See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. (4th Cir. 2009) 591 F.3d 250, 254 [§ 230 is not just a "`defense to liability'"; it instead confers "`immunity from suit'" (italics omitted)]; Medytox Solutions, Inc. v. Investorshub.com, Inc., supra, 152 So.3d at p. 731.) This inclusive language, read in connection with section 230(c)(1) and the rest of section 230, conveys an intent to shield Internet intermediaries from the burdens associated with defending against state law claims that treat them as the publisher or speaker of third party content, and from compelled compliance with demands for relief that, when viewed in the context of a plaintiff's allegations, similarly assign them the legal role and responsibilities of a publisher qua publisher. (See Barrett, supra, 40 Cal.4th at pp. 53, 56, 57; Barnes v. Yahoo!, Inc., supra, 570 F.3d at pp. 1101-1102; Zeran, supra, 129 F.3d at p. 330.) As evidenced by section 230's findings, Congress 545 *545 believed that this targeted protection for republishers of online content would facilitate the ongoing development of the Internet. (See § 230(a)(1), (4), (b)(1), (2).)

These interests are squarely implicated in this case. An injunction like the removal order plaintiffs obtained can impose substantial burdens on an Internet intermediary. Even if it would be mechanically simple to implement such an order, compliance still could interfere with and undermine the viability of an online platform. (See Noah v. AOL Time Warner Inc., supra, 261 F.Supp.2d at p. 540 ["in some circumstances injunctive relief will be at least as burdensome to the service provider as damages, and is typically more intrusive"].) Furthermore, as this case illustrates, a seemingly straightforward removal order can generate substantial litigation over matters such as its validity or scope, or the manner in which it is implemented. (See Barrett, supra, 40 Cal.4th at p. 57.) Section 230 allows these litigation burdens to be imposed upon the originators of online speech. But the unique position of Internet intermediaries convinced Congress to spare republishers of online content, in a situation such as the one here, from this sort of ongoing entanglement with the courts.^[16]

(7) To summarize, we conclude that in light of Congress's designs with respect to section 230, the capacious language Congress adopted to effectuate its intent, and the consequences that could result if immunity were denied here, Yelp is entitled to immunity under the statute. Plaintiffs' attempted end run around section 230 fails.^[17]

546 *546 The dissents see this case quite differently. The dissenting justices would endorse plaintiffs' gambit as consistent with Congress's intent in enacting section 230. We disagree on several levels with the dissents' construction of section 230.^[18] The narrow, grudging view of section 230's immunity provisions advanced in both dissents is at odds with this court's analysis in Barrett, and for that matter with the views of virtually all courts that have construed section 230. Although Justice Cuéllar, in his dissent, repeatedly suggests that Yelp somehow improperly or prematurely injected itself into this action in a manner material to the necessary analysis (e.g., dis. opn. of Cuéllar, J., post, at pp. 569, 582, 583), with this case's unusual litigation posture — which was engineered by plaintiffs, not Yelp — it was perfectly appropriate for Yelp to seek clarification of its legal obligations before plaintiffs chose to initiate contempt proceedings against it. Additionally, although the dispositive nature of Yelp's section 230 argument makes it unnecessary to dwell on the due process concerns addressed by Justice Kruger in her concurring opinion (see generally conc. opn. of Kruger, J., post), at a bare minimum we find it troubling that the dissents' approach, if it were the law, could create unfortunate incentives for plaintiffs to provide little or no prejudgment notice to persons or entities that could assert immunity as defendants. A plaintiff might reason that if even informal notice were provided, a nonparty republisher might seek to intervene as a defendant and claim immunity prior to the entry of judgment.^[19]

Perhaps the dissenters' greatest error is that they fail to fully grasp how plaintiffs' maneuver, if accepted, could subvert a statutory scheme intended to promote online discourse and industry self-regulation. What plaintiffs did in attempting to deprive Yelp of immunity was creative, but it was not difficult. If plaintiffs' approach were recognized as legitimate, in the future other plaintiffs could be expected to file lawsuits pressing a broad array of demands for injunctive relief against compliant or default-prone original sources of allegedly tortious online content. Injunctions entered incident to the entry of judgments in these cases then would be interposed against providers or users of interactive computer services who could not be sued directly, due to section 547 *547 230 immunity. As evinced by the injunction sought in Kathleen R., supra, 87 Cal.App.4th 684, which demanded nothing less than control over what local library patrons could view on the Internet (id., at p. 691), the extension of injunctions to these otherwise immunized nonparties would be particularly conducive to stifling, skewing, or otherwise manipulating online discourse — and in ways that go far beyond the deletion of libelous material from the Internet. Congress did not intend this result, any more than it intended that Internet intermediaries be bankrupted by damages imposed through lawsuits attacking what are, at their core, only decisions regarding the publication of third party content.

For almost two decades, courts have been relying on section 230 to deny plaintiffs injunctive relief when their claims inherently treat an Internet intermediary as a publisher or speaker of third party conduct. Certainly in some instances where immunity has been recognized prior to judgment, the plaintiff was in fact defamed or otherwise suffered tortious harm susceptible to being remedied through an injunction. Yet Congress has declined to amend section 230 to authorize injunctive relief against mere republishers, even as it has limited immunity in other ways. (See Pub.L. No. 115-164, § 4 (Apr. 11, 2018) 132 Stat. 1253 [amending § 230 to add § 230(e)(5), clarifying that immunity does not apply to certain civil claims and criminal actions associated with sex trafficking].) Although this acquiescence is not itself determinative, it provides a final indication that the dissenting justices are simply substituting their judgment for that of Congress regarding what amounts to good policy with regard to online speech. But that is not our role.

Even as we conclude that Yelp is entitled to immunity, we echo Barrett, supra, 40 Cal.4th 33, in emphasizing that our reasoning and result do not connote a lack of sympathy for those who may have been defamed on the Internet. (Barrett, at p. 63.) Nevertheless, on this record it is clear that plaintiffs' legal remedies lie solely against Bird, and cannot extend — even through an injunction — to Yelp.

On this last point, we observe that plaintiffs still have powerful, if uninvoked, remedies available to them. Our decision today leaves plaintiffs' judgment intact insofar as it imposes obligations on Bird. Even though neither plaintiffs nor Bird can force Yelp to remove the challenged reviews, the judgment requires Bird to undertake, at a minimum, reasonable efforts to secure the removal of her posts. A failure to comply with a lawful court order is a form of civil contempt (Code Civ. Proc., § 1209, subd. (a)(5)), the consequences of which can include imprisonment (see In re Young (1995) 9 Cal.4th 1052, 1054 [40 Cal.Rptr.2d 114, 892 P.2d 148]). Much of the dissents' rhetoric regarding the perceived injustice of today's decision assumes that plaintiffs' remaining remedies will be ineffective. One might more 548 *548 readily conclude that the prospect of contempt sanctions would resonate with a party who, although not appearing below, has now taken the step of filing an amicus curiae brief with this court.

III. DISPOSITION

For the foregoing reasons, section 230 immunity applies here. We therefore reverse the judgment of the Court of Appeal insofar as it affirmed the trial court's denial of Yelp's motion to set aside and vacate the judgment. That motion should have been granted to the extent that it sought to delete from the order issued upon entry of the default judgment any requirement that Yelp remove the challenged reviews or subsequent comments of the reviewers. The cause is remanded for further proceedings as appropriate in light of this court's disposition.

Chin, J., and Corrigan, J., concurred.

KRUGER, J., Concurring. —

I concur in the judgment. I agree with the plurality opinion that the injunction against Yelp Inc. (Yelp) is invalid, but I begin with a more basic reason. Yelp is not a party to this litigation, and the courts' power to order people to do (or to refrain from doing) things is generally limited to the parties in the case. Although there are qualifications to the rule, there is no exception that permits the sort of order we confront here: an order directing a nonparty website operator to remove third party user content just in case the user defaults on her own legal obligation to remove it. Before Yelp can be compelled to remove content from its website, the company is entitled to its own day in court.

The plurality opinion instead concludes the injunction is invalid because it violates section 230 of title 47 of the United States Code (hereafter section 230), part of the federal Communications Decency Act of 1996 (Pub.L. No. 104-104 (Feb. 8, 1996) 110 Stat. 133), a statute that bars civil suit against website operators like Yelp for permitting third parties to post content on their sites. Although I believe it is unnecessary to reach the issue, I agree with the plurality opinion that even if it were permissible to enter an injunction against a nonparty website operator based solely on its past decision to permit the defendant to post content on its website, the operator would be entitled to section 230 immunity in that proceeding. I express no view on how section 230 might apply to a different request for injunctive relief based on different justifications.

549 *549 I.

A.

Although the plurality opinion begins its analysis with the special immunity conferred on interactive computer service providers in section 230, I would begin with legal principles of considerably older vintage. It is an "elementary common law principle of jurisprudence" — followed in California, as elsewhere — that "a judgment may not be entered either for or against one not a party to an action or proceeding." (Fazzi v. Peters (1968) 68 Cal.2d 590, 594 [68 Cal.Rptr. 170, 440 P.2d 242].) A court's power is limited to adjudicating disputes between persons who have been designated as parties or made parties by service of process; it has "no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant." (Zenith Corp. v. Hazeltine (1969) 395 U.S. 100, 110 [23 L.Ed.2d 129, 89 S.Ct. 1562] (Zenith).) This common law principle is backed by the Constitution's guarantee of procedural fairness — a guarantee that, at its core, entitles persons to meaningful notice and opportunity to be heard before a court fixes their legal rights and responsibilities. (Hansberry v. Lee (1940) 311 U.S. 32, 40 [85 L.Ed. 22, 61 S.Ct. 115].)

Consistent with this principle, courts have long observed a general rule against entering injunctions against nonparties. An injunction is a "`personal decree'" that "`operates on the person of the defendant by commanding him to do or desist from certain action'" as a remedy for violations or threatened violations of the law. (Comfort v. Comfort (1941) 17 Cal.2d 736, 741 [112 P.2d 259].) More than a century ago, the United States Supreme Court invalidated an injunction enjoining nonparties, explaining: "[W]e do not think it comports with well-settled principles of equity procedure to include [nonparties] in an injunction in a suit in which they were not heard or represented, or to subject them to penalties for contempt in disregarding such an injunction." (Scott v. Donald (1897) 165 U.S. 107, 117 [41 L.Ed. 648, 17 S.Ct. 262].) Some decades later, the high court again invalidated an injunction as "clearly erroneous" insofar as it "assumed to make punishable as a contempt the conduct of persons who act independently and whose rights have not been adjudged according to law." (Chase National Bank v. Norwalk (1934) 291 U.S. 431, 436-437 [78 L.Ed. 894, 54 S.Ct. 475], fn. omitted.) And again, in Zenith, supra, 395 U.S. at page 110, the high court ruled that the district court had erred in entering an injunction against an entity (there, the parent company of the named defendant) that "was not named as a party, was never served and did not formally appear at the trial."

Judge Learned Hand, in an oft-cited statement of the rule, explained its logic in this way: "[N]o court can make a decree which will bind any one but 550 *550 a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court." (Alemite Manufacturing Corp. v. Staff (2d Cir. 1930) 42 F.2d 832, 832-833 (Alemite).) The court in Alemite held that the district court had no power to issue an injunction against a former employee of the defendant because the former employee was not a party to the underlying action. (Ibid.) California courts, employing the same general principle, have reached similar conclusions in a variety of other scenarios. (People ex rel. Gwinn v. Kothari (2000) 83 Cal.App.4th 759, 769 [100 Cal.Rptr.2d 29] ["`The courts ... may not grant an ... injunction so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.'"]; People v. Conrad (1997) 55 Cal.App.4th 896, 902 [64 Cal.Rptr.2d 248] (Conrad) ["Injunctions are not effective against the world at large."].)

As all these authorities have recognized, while the law generally forbids courts from naming nonparties, the law does in certain circumstances permit a court to enforce an injunction against a nonparty. Without such a rule, enjoined parties could "play jurisdictional `shell games'"; that is, they could "nullify an injunctive decree by carrying out prohibited acts with or through nonparties to the original proceeding." (Conrad, supra, 55 Cal.App.4th at p. 902.) For that reason, as this court observed more than a century ago, even though injunctions "[o]rdinarily" run only to the named parties in an action, it is "common practice to make the injunction run also to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders, abetters, etc., though not parties to the action." (Berger v. Superior Court (1917) 175 Cal. 719, 721 [167 P. 143] (Berger).) "[S]uch parties violating its terms with notice thereof are held guilty of contempt for disobedience of the judgment." (Ibid.; accord, e.g., Regal Knitwear Co. v. Board (1945) 324 U.S. 9, 14 [89 L.Ed. 661, 65 S.Ct. 478].)

But under this general rule, while nonparties may be barred from acting on behalf of, or in concert with, a defendant in violating an injunction, they may not be barred from acting independently. The "whole effect" of the practice, we explained in Berger, "is simply to make the injunction effectual against all through whom the enjoined party may act, and to prevent the prohibited action by persons acting in concert with or in support of the claim of the enjoined party, who are in fact his aiders and abetters." (Berger, supra, 175 Cal. at p. 721.) Put differently, the practice permits a court to punish a nonparty for violating an injunction only "when he has helped to bring about, not merely what the decree has forbidden, because it may have gone too far, but what it has power to forbid, an act of a party." (Alemite, supra, 42 F.2d at 551 *551 p. 833, italics added.) To extend the court's power beyond this point would authorize a court in effect to impose judgment without hearing, a result at odds with basic notions of procedural fairness.

B.

In the litigation underlying this appeal, plaintiffs sued defendant Ava Bird for posting allegedly defamatory reviews on Yelp. Bird did not respond, and after a prove-up hearing (Code Civ. Proc., § 585, subd. (b)), the trial court entered a default judgment against her. In addition to awarding other relief, the trial court ordered Bird to remove the offending reviews from Yelp. And then, apparently as backup, the trial court ordered Yelp to do the same.^[1] Until this point, Yelp was a stranger to the litigation; it had neither been named as a party nor served with process. And although plaintiffs had previously sent Yelp a copy of the complaint, the complaint neither named Yelp as a party defendant nor notified Yelp of their plans to seek injunctive relief against it. Unsurprisingly, then, Yelp did not participate in the proceedings. It did not learn of the injunction until plaintiffs served it with the court order.

When Yelp was served, it promptly filed a motion to set aside and vacate the judgment. It argued, among other things, that the issuance of the injunction against it violated both due process and section 230. The trial court denied the motion. It reasoned that the injunction against Yelp was proper because Yelp is aiding and abetting Bird's violation of the injunction by, among other things, allowing the reviews to remain posted on the website. The Court of Appeal affirmed in pertinent part, though it pointedly declined to rely on the trial court's findings that Yelp was aiding and abetting Bird's noncompliance. The trial court's aiding and abetting findings, the Court of Appeal ruled, were "premature" and "also potentially improper to the extent proceedings were conducted without the procedural safeguards attendant to a contempt proceeding." (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1354 552 *552 [203 Cal.Rptr.3d 203], review granted Sept. 21, 2016, S235968 (Hassell).) Instead, relying on Berger and subsequent cases, the court reasoned that the trial court has "the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding," and thus also has the power to direct Yelp "to effectuate the injunction against Bird." (Hassell, at pp. 1356-1357.)

The Court of Appeal's reasoning reflects a misunderstanding of the scope of the trial court's power to enjoin a nonparty. The common law rule described in Berger would have permitted the court to forbid Yelp and others from acting in concert with Bird, or on Bird's behalf, to violate the court's injunction against Bird. This is what it means to bind individuals "with or through" whom the enjoined party acts. (Conrad, supra, 55 Cal.App.4th at p. 902.) But because Yelp was not a party to the case, it could not, consistent with the common law rule, be enjoined "from engaging in independent conduct with respect to the subject matter of th[e] suit." (Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc. (Fed.Cir. 1996) 96 F.3d 1390, 1395.) Here, the injunction expressly names Yelp and "impose[s] obligations directly on [it]." (Ibid.) The injunction requires Yelp to take action, regardless of whether it acts independently of or in concert with Bird in failing to remove the challenged reviews, and "to that extent is in error." (Ibid.)^[2]

Plaintiffs, as well as Justice Liu, argue that the injunction naming Yelp is valid because it merely makes explicit that Yelp, as an entity "through" whom Bird acts, is obligated to carry out the injunction on her behalf. (Dis. opn. of Liu, J., post, at pp. 562-563.) But the trial court made no finding that Bird acts, or has ever acted, "through" Yelp in the sense relevant under Berger, nor does the record contain any such indication; we have no facts before us to suggest that Yelp is Bird's "agent" or "servant." (Berger, supra, 175 Cal. at p. 720.) It is true and undisputed, as plaintiffs and Justice Liu emphasize, that Bird's statements were posted on Yelp's website with Yelp's permission. (Dis. opn. of Liu, J., post, at p. 563.) And as a practical matter, Yelp has the technological ability to remove the reviews from the site. These facts might well add up (at least absent § 230) to a good argument for filing suit against Yelp and seeking an injunctive remedy in the ordinary course of litigation. But the question presented here is whether these facts establish the sort of legal identity between Bird and Yelp that would justify binding Yelp, as a nonparty, to the outcome of litigation in which it had no meaningful opportunity to participate. Without more, I do not see how they could. (Cf., 553 *553 e.g., Paramount Pictures Corp. v. Carol Publishing Group, Inc. (S.D.N.Y. 1998) 25 F.Supp.2d 372, 375-376 (Paramount Pictures) [denying request to expand the scope of copyright infringement injunction to nonparties merely because the nonparties' conduct "`may well be found [to render them] directly liable for copyright infringement'"].)^[3]

The nature of the injunction, as well as the relationship between Yelp and Bird, distinguishes this case from Ross v. Superior Court (1977) 19 Cal.3d 899 [141 Cal.Rptr. 133, 569 P.2d 727] (Ross), on which the Court of Appeal relied. In Ross, an injunction was issued against state officials and their agents, requiring payment of welfare benefits that had been improperly withheld. Although state officials had ordered the counties administering the benefits to make the payments as the injunction required, one county's board of supervisors refused and contempt proceedings were brought against them. The supervisors argued that they could not be bound by the injunction because they were not parties to the underlying action in which the injunction was issued. (Id. at pp. 902-903.) This court rejected the argument, explaining that, by statute, counties act on behalf of the state in administering welfare benefits, and thus are bound to carry out an order against the state concerning the administration of the benefits. (Id. at pp. 905-909.) In so holding, the court relied on In re Lennon (1897) 166 U.S. 548 [41 L.Ed. 1110, 17 S.Ct. 658], in which the high court held in contempt a railway employee who refused to move cars of the defendant railway to comply with an injunction against the defendant, despite the defendant's order to do so. (See Ross, at p. 905.)

The Court of Appeal appeared to read Ross to mean that a trial court has broad power to enjoin a nonparty with the practical ability to "effectuate" an injunction entered against a party. (Hassell, supra, 247 Cal.App.4th at p. 1355, rev. granted.) But Ross (like Lennon before it) stands for a far more 554 *554 limited proposition: A party's agent or servant, acting in his or her capacity as an agent or servant, is bound to comply with an injunction against the party. This is because the acts of the agent are imputed to the party; the agent's failure to act as the law demands is the party's failure, and it thus falls within the scope of the court's power to punish. The same is not, however, true of an individual who acts independently. The law draws this distinction, as Judge Hand explained of Lennon, "for it is not the act described which the decree may forbid, but only that act when the defendant does it." (Alemite, supra, 42 F.2d at p. 833, italics added.) The nonparty who independently does, or fails to do, what the decree commands is entitled to his or her own day in court.

C.

Although plaintiffs, like the Court of Appeal, rely largely on a rule concerning a trial court's power to forbid parties from nullifying an injunctive decree by carrying out prohibited acts through nonparties, their real concern does not appear to be that Bird is using or will use Yelp as a pawn to play "jurisdictional `shell games.'" (Conrad, supra, 55 Cal.App.4th at p. 902.) Their concern instead appears to be that Bird will simply ignore the injunction — all on her own — and the offending reviews will remain visible unless and until Yelp takes independent action.

The concern is a substantial one, but the usual remedy for such concerns is to sue for a determination of the third party's legal obligation to do as plaintiffs wish. Plaintiffs have identified no instance in which a court has upheld the issuance of an injunction against a nonparty under remotely similar circumstances. Perhaps the closest plaintiffs have come is U.S. v. Hall, supra, 472 F.2d 261, in which a federal court of appeals upheld the criminal contempt conviction of a nonparty for interference with the operation of a school campus for purposes of obstructing implementation of a desegregation order. The nonparty's actions, the court explained, "imperiled the court's fundamental power to make a binding adjudication between the parties properly before it." (Id. at p. 265.) But the court's holding in that case turned on the nonparty's willful obstruction of the defendant's compliance with the court's judgment. (Ibid. [distinguishing Alemite and Chase National Bank]; see also U.S. v. Paccione (2d Cir. 1992) 964 F.2d 1269, 1275 [similarly distinguishing Alemite because the case before it "dealt with a person who interfered with the res, the disposition of which the district court had specifically restricted, and who consciously impeded the rights, obligations and efforts of the parties bound by the court's order from attempting to comply with valid court orders"]; see generally Rest.2d Judgments, § 63 [discussing duty not to obstruct compliance with court judgment].) In this case, there is no argument that Yelp is obstructing Bird's compliance with the 555 *555 court's order; Yelp represents (and we have no reason to doubt) that it will not stand in the way if Bird herself removes the reviews.^[4] The concern is instead that Bird is withholding her own compliance, and the question is whether Yelp can be ordered to act independently, even though Yelp has not been served or its own rights adjudicated. Again, plaintiffs have cited no authority that permits that result.

Plaintiffs also argue that the order is proper because Yelp has no independent interest in continuing to publish reviews that have been found by the trial court to be defamatory (albeit in a case to which Yelp was not a party). Yelp and its amici curiae vigorously disagree, arguing that it has a protected First Amendment interest in the publication of the reviews, separate and apart from Bird's own authorial interest, that has not yet been adjudicated. (Cf., e.g., New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710] [discussing 1st Amend. rights of both the authors of a newspaper advertisement and the newspaper that published it]; Taylor v. Sturgell (2008) 553 U.S. 880, 892 [171 L.Ed.2d 155, 128 S.Ct. 2161] ["A person who was not a party to a suit generally has not had a `full and fair opportunity to litigate' the claims and issues settled in that suit," and therefore ordinarily is not bound by the judgment.].) We need not definitively resolve this controversy here, however, because it is incontestable that Yelp has an interest in avoiding a court order, backed by the threat of contempt sanctions, requiring it to do something it does not believe it is legally obligated to do. Whether Yelp is right or wrong about the nature of its obligations is beside the point. A person may be wrong and nevertheless entitled to his or her day in court.

D.

So far, I have described common ground with Justice Cuéllar's dissenting opinion. Justice Cuéllar does not defend the trial court's decision to issue an injunction against Yelp in a proceeding to which it was not a party, and he would vacate the Court of Appeal's judgment upholding that order. (Dis. opn. of Cuéllar, J., post, at pp. 588-592.) Justice Cuéllar would, however, remand for consideration of whether the injunction against Bird can be enforced against Yelp because the company has aided and abetted, or otherwise acted in concert with, Bird in her violation of the court's injunction. (Id. at pp. 591-592.)

I agree with Justice Cuéllar that this is the pertinent standard under Berger and related cases, but I do not believe a remand is warranted to consider whether Yelp has aided and abetted Bird's noncompliance with the court's 556 *556 order against her. The question before us concerns only the validity of the injunction entered against Yelp. To be sure, after that injunction issued, the trial court later concluded that Yelp had also aided and abetted the violation of the injunction against Bird and could be ordered to remove the reviews for that reason. But as noted, the Court of Appeal held that these aiding and abetting findings were both "premature" and "also potentially improper" to the extent they were made in the context of Yelp's legal challenge to the validity of the judgment, and without the procedural protections to which Yelp would have been entitled in a contempt proceeding. (Hassell, supra, 247 Cal.App.4th at p. 1354, rev. granted; cf. Gonzalez, supra, 12 Cal.4th at p. 816 [contempt proceedings are "considered quasi-criminal, and the defendant possesses some of the rights of a criminal defendant"]; Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563, 568 (Blockowicz) ["Actions that aid and abet in violating the injunction must occur after the injunction is imposed[.]"]; Paramount Pictures, supra, 25 F.Supp.2d at p. 375 ["Nor does an injunction reach backwards in time to action taken prior to the time it was issued."].) Plaintiffs have not challenged the Court of Appeal's holding on this point. That holding does not preclude plaintiffs from instituting further proceedings if they believe Yelp has engaged in relevant post-order evasive conduct, or from seeking appropriate clarification of the scope of the injunction against Bird, but it does foreclose reliance on an aiding and abetting theory to validate the order enjoining Yelp in the first instance. And for present purposes, the conclusion that the injunction against Yelp is invalid is a complete answer to the issue presented to us.

To the extent the question might arise in the future, however, I offer a cautionary note. The difficulties with the trial court's aiding and abetting analysis extend beyond matters of timing and procedure. The trial court in this case reasoned, among other things, that Yelp is aiding and abetting Bird's violation of the injunction simply by failing to remove Bird's reviews from the website. But this establishes only that Yelp has not stepped forward to act despite Bird's noncompliance. That is not aiding and abetting. (See Blockowicz, supra, 630 F.3d at p. 568 [concluding that Internet service provider's refusal to comply with an injunction was "mere inactivity" that was "simply inadequate to render them aiders and abettors in violating the injunction"]; see also Conrad, supra, 55 Cal.App.4th at p. 903 [before a nonparty can be punished for violating the terms of an injunction, it must be shown that the nonparty has acted "with or for those who are restrained"; "some actual relationship with an enjoined party is required" and "[m]ere `mutuality of purpose' is not enough"].) Put differently: The mere fact that Yelp has not removed Bird's reviews from its website is not reason enough to avoid litigating the question whether Yelp does, in fact, have a legal 557 *557 obligation to remove the reviews from its website, in a forum in which Yelp has a meaningful opportunity to be heard.^[5]

II.

In my view, these basic common law principles suffice to decide the case. The plurality opinion, however, decides the matter on a different ground. It holds that the trial court's order directing Yelp to remove the reviews from the website is barred by Yelp's statutory immunity under section 230. Although I believe it is unnecessary to reach the section 230 question, I agree with the plurality opinion's conclusion given the particular circumstances of this case: Even if it were permissible to issue an injunction against Yelp solely because it once permitted Bird to post her reviews and has the ability to remove them, the proceedings would be barred by section 230.

Two subsections of section 230 form the basis of the immunity Yelp claims in this case. First, section 230(c)(1) provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Second, section 230(e)(3) provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Together, "[t]hese provisions have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source." (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 39 [51 Cal.Rptr.3d 55, 146 P.3d 510] (Barrett).)

In an early, influential discussion of section 230, the Fourth Circuit interpreted the provision to forbid any legal obligation that "would place a computer service provider in a publisher's role." (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330.) The language of Zeran might be read to suggest that a court could never order a website to remove third party content, since any such order would necessarily interfere with the website's choices about what content to publish. But section 230 immunity has not been thought to sweep quite so broadly. Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 is illustrative. There, the Ninth Circuit concluded that section 230 immunity precluded a plaintiff's claim of negligence against the website Yahoo for failure to take down fake profile accounts purporting to be the 558 *558 plaintiff, but did not preclude a claim of promissory estoppel based on Yahoo's failure to fulfill a promise to remove the material. (Barnes, at pp. 1104-1109.) The Ninth Circuit reasoned that the plaintiff's promissory estoppel claim "does not seek to hold Yahoo liable as a publisher or speaker of third-party content, but rather as the counter-party to a contract, as a promisor who has breached." (Id. at p. 1107.) Liability on the latter claim, the court explained, "would come not from Yahoo's publishing conduct, but from Yahoo's manifest intention to be legally obligated to do something, which happens to be removal of material from publication." (Ibid.)

Distilling the available authorities, section 230 immunity applies to an effort to bring a cause of action or impose civil liability on a computer service provider that derives from its status as a publisher or speaker of third party content. This reading of the statute is consistent with the policies articulated in influential cases interpreting section 230 immunity such as Zeran and reiterated in the plurality opinion: Section 230 forbids a cause of action or the imposition of liability when the effect is to impose liability for, or draw the provider into litigation to defend, its past editorial judgments (or lack thereof) in permitting third party postings. But section 230 does not bar a cause of action solely because the result might be a court order requiring the provider, as the publisher of the posting in question, to take steps to remove it.

In each of the cases cited in the plurality opinion, the court applied section 230 to bar the filing of a lawsuit seeking to hold an interactive computer service responsible for offending posts written by a third party. This case concerns a different scenario. In this case, plaintiffs have filed no lawsuit against Yelp and have pursued no substantive claim against it. The injunction, as narrowed to Bird's past reviews, on its face does not seek to draw Yelp into litigation to second guess or penalize Yelp for its initial decision to post Bird's reviews, despite their defamatory content. As plaintiffs emphasize, the injunction instead requires only that, now that the reviews have been found by a court to be defamatory, Yelp remove the reviews. The injunction of course recognizes that Yelp is — as a matter of fact — the publisher of Bird's reviews; the reviews cannot come down without Yelp's cooperation. But that is not the pertinent question. The question is instead whether the injunction necessarily holds Yelp legally responsible for, or otherwise authorizes litigation against Yelp solely because of, its editorial choices.

As the case comes to us, I agree with the plurality opinion that the answer to that question is yes. The justification plaintiffs offer for the issuance of the injunction is that Bird acted with Yelp's permission in posting her reviews on its website, and Yelp has the ability to remove them even if Bird chooses not to. This means, as the plurality opinion says, that plaintiffs are proceeding 559 *559 against Yelp based on nothing more than its role as a publisher of third party content. (Plur. opn., ante, at pp. 541-543.) As such, the only distinction between this case and a lawsuit seeking to hold Yelp civilly liable for granting this permission to third party users — which, as all agree, would unquestionably be barred by section 230 immunity — is plaintiffs' decision not to name Yelp as a party (and thus, as plaintiffs would have it, to save Yelp the trouble of defending itself). But for reasons I have already explained, plaintiffs' decision cannot deprive Yelp of its opportunity to be heard on the propriety of the injunction against it. The distinction in procedure thus ultimately makes no difference. Either way, plaintiffs have drawn Yelp into litigation solely because of its past decision to allow Bird to post her reviews. Even if the trial court otherwise had the power to issue an injunction against Yelp solely on that basis, the proceedings would be barred by section 230.

I would, however, stop there; I venture no opinion as to how section 230 might apply to other take-down orders based on different justifications. I understand the plurality opinion's application of section 230 to be similarly limited. The plurality opinion "recognize[s] that not all legal duties owed by Internet intermediaries necessarily treat them as the publishers of third party content, even when these obligations are in some way associated with their publication of this material"; it instead holds that, on the record before us, "Yelp is inherently being treated as the publisher of the challenged reviews, and it has not engaged in conduct that would take it outside section 230's purview in connection with the removal order." (Plur. opn., ante, at pp. 542-543.) This restraint is, I believe, appropriate here. Section 230 is often credited with giving rise to the modern Internet as we know it, but the broad sweep of section 230 immunity also has "troubling consequences." (Barrett, supra, 40 Cal.4th at p. 40; see id. at pp. 62-63.) Section 230, as broadly construed, has brought an end to a number of lawsuits seeking remedies for a wide range of civil wrongs accomplished through Internet postings — including, but not limited to, defamation, housing discrimination, negligence, securities fraud, cyberstalking, and material support of terrorism. (See, e.g., Doe v. Backpage.com, LLC (1st Cir. 2016) 817 F.3d 12, 19 [citing cases]; Pennie v. Twitter, Inc. (N.D.Cal. 2017) 281 F.Supp.3d 874, 888-889.) Whether to maintain the status quo is a question only Congress can decide. But at least when it comes to addressing new questions about the scope of section 230 immunity, we should proceed cautiously, lest we inadvertently forbid an even broader swath of legal action than Congress could reasonably have intended.

III.

I, like my colleagues, am sympathetic to plaintiffs' dilemma. Plaintiffs have proved to the satisfaction of the trial court that Bird's critical Yelp 560 *560 reviews are false; Bird has yet to comply with the court's order to remove the reviews; and section 230 forbids them from suing Yelp to require it to remove the reviews if Bird fails to do so. But as I see it, issuing an injunction directly against Yelp, without affording it a meaningful opportunity to be heard, is not an available alternative. Plaintiffs' understandable desire to circumvent section 230 does not permit us to cast aside either the "`"deep-rooted historic tradition that everyone should have his own day in court,"'" or the fundamental due process principles on which that tradition rests. (Richards v. Jefferson County (1996) 517 U.S. 793, 798 [135 L.Ed.2d 76, 116 S.Ct. 1761].) I therefore join the plurality opinion in concluding that Yelp's motion to vacate the injunction against it should have been granted.

LIU, J., Dissenting. —

The court expresses "sympathy" for those who have been defamed on the Internet, including plaintiffs Dawn L. Hassell and the Hassell Law Group, who won a lawful judgment against defendant Ava Bird for defamatory reviews that Bird posted on Yelp Inc. (Yelp). (Plur. opn., ante, at p. 547; see conc. opn. of Kruger, J., ante, at p. 559.) But Hassell is not seeking sympathy. She is seeking a remedy for the damage done to her and her law firm. The trial court provided that remedy in the form of damages against Bird and an injunction ordering both Bird and Yelp to remove the defamatory reviews, and the Court of Appeal affirmed. However, more than four years after the trial court issued its order, Bird's defamatory reviews remain posted on Yelp. Bird has refused to comply with the injunction, and Yelp claims it is under no legal obligation to comply. Today's decision agrees with Yelp, thereby ensuring that Hassell will continue to suffer reputational harm from the unlawful postings unless Bird is somehow made to comply.

This "dilemma" (conc. opn. of Kruger, J., ante, at p. 559) is one of the court's own making. As Justice Cuéllar explains, today's extension of the Communications Decency Act of 1996 (47 U.S.C. § 230) (section 230) to immunize Yelp is not supported by case law or by the statute's text and purpose. (Dis. opn. of Cuéllar, J., post, at pp. 570-585.) Section 230 does not immunize Yelp from this removal order issued by a California court in a case where "[n]o claim was ever brought against Yelp seeking defamation or tort liability for its editorial decisions." (Dis. opn. of Cuéllar, J., post, at p. 578.) Decisions like Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327 are inapposite because they involved lawsuits filed directly against providers of interactive computer services for tort liability. In Barrett v. Rosenthal (2006) 40 Cal.4th 33 [51 Cal.Rptr.3d 55, 146 P.3d 510] (Barrett), we relied on those decisions to conclude that "section 230 exempts Internet intermediaries from defamation liability for republication." (Id. at p. 63.) We rested our holding on the understanding that "[s]ubjecting service providers to notice liability would defeat `the dual purposes' of section 230, by encouraging providers to restrict speech and abstain from self-regulation. [Citation.] A provider would be at risk for liability each time it received notice of a potentially defamatory 561 *561 statement in any Internet message, requiring an investigation of the circumstances, a legal judgment about the defamatory character of the information, and an editorial decision on whether to continue the publication." (Barrett, at p. 45, italics added.) We emphasized that "[a]ny investigation of a potentially defamatory Internet posting is ... a daunting and expensive challenge." (Id. at p. 57, italics added.) Our opinion repeatedly explained that section 230 is intended to protect service providers from investigation and litigation burdens arising from notice of users' "potentially" defamatory statements. (Barrett, at pp. 44-46, 55, 57.)

These concerns are not present in this case. No one has burdened Yelp with defending against liability for potentially defamatory posts. Here, the trial court ordered Yelp to remove postings that have been already adjudicated to be defamatory. Hassell sued Bird, not Yelp, and the litigation did not require Yelp to incur expenses to defend its editorial judgments or any of its business practices. The trial court ruled that Bird had defamed Hassell on Yelp, and it directed Yelp to help effectuate the remedy. Yelp's conduct as a speaker or publisher was never at issue in Hassell's lawsuit, and the trial court imposed no liability on Yelp for such conduct. Instead, the trial court enjoined Yelp as part of the remedy for Bird's tortious conduct toward Hassell. A company in Yelp's position may face burdens associated with determining the "validity or scope" of a removal order or "the manner in which it is implemented." (Plur. opn., ante, at p. 546.) But these are not the type of burdens contemplated by Barrett or the cases upon which Barrett relied in explaining the purpose of section 230 immunity.

As for Yelp's due process claim, the Court of Appeal properly clarified that the question here is "whether the trial court was without power to issue the removal order in the first instance." (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1357 [203 Cal.Rptr.3d 203], review granted Sept. 21, 2016, S235968, italics added.) The matter before us is Yelp's motion to vacate the trial court's judgment; this is not a contempt proceeding or other action seeking to impose liability on Yelp for violating the injunction. (Ibid. [Yelp's postjudgment conduct "has no bearing on the question" presented].) Justice Kruger argues that the removal order directed at Yelp violates due process because Yelp was never given its "own day in court" before the order was issued. (Conc. opn. of Kruger, J., ante, at p. 554.) She cites Judge Learned Hand's opinion in Alemite Manufacturing Corp. v. Staff (2d Cir. 1930) 42 F.2d 832 (Alemite) for the proposition that a court generally cannot "bind any one but a party" and "cannot lawfully enjoin the world at large." (Id. at p. 832; see conc. opn. of Kruger, J., ante, at pp. 549-550.)

But "[g]eneral propositions do not decide concrete cases" (Lochner v. New York (1905) 198 U.S. 45, 76 [49 L.Ed. 937, 25 S.Ct. 539] (dis. opn. of 562 *562 Holmes, J.)), and the facts of Alemite are instructive. The plaintiff there won a patent infringement suit against John Staff and obtained an injunction "against John, `his agents, employees, associates and confederates,' enjoining them from infringing, or `aiding or abetting or in any way contributing to the infringement.'" (Alemite, supra, 42 F.2d at p. 832.) "At the time of the suit [John's brother] Joseph was a salesman for John, but later, having left his employ, he set up in business for himself, and was proved to have infringed the patent. The plaintiff then began proceedings in the original suit to punish Joseph for contempt, asserting that he was bound by the decree, and that his new business was a violation of the writ." (Ibid.) The Second Circuit held that the injunction in the action against John could not extend to Joseph's new act of infringement. (Id. at p. 833.) Noting that "[t]he District Judge found that John `had no connection or part whatever in the acts of contempt hereby adjudged against Joseph Staff'" (id. at p. 832), Judge Hand explained that "[t]he District Court had no more power in the case at bar to punish [Joseph] than a third party who had never heard of the suit" (id. at p. 833).

The injunction in Alemite could not reach Joseph, a nonparty, because his infringement of the same patent was entirely independent of John's original act of infringement. It was in that sense that Judge Hand said Joseph was a stranger to the underlying suit. The same is not true here. The trial court did not enjoin Yelp "`from engaging in independent conduct with respect to the subject matter of th[e] suit.'" (Conc. opn. of Kruger, J., ante, at p. 552.) Yelp was directed to remove Bird's defamatory reviews of Hassell, the very subject matter of the underlying suit. The trial court did not enjoin Yelp from posting any other defamatory reviews of Hassell, even if such reviews were identical to Bird's. This is fully consistent with Judge Hand's admonition that "it is not the act described which the decree may forbid, but only that act when the defendant does it." (Alemite, supra, 42 F.2d at p. 833, italics added.) The defendant here is Bird; the unlawful acts are Bird's defamatory reviews; and the injunction directs Yelp to remove only Bird's defamatory reviews, not anyone else's. The removal order illustrates the rule that an injunction may extend to a nonparty "when [the nonparty] has helped to bring about ... what [the injunction] has power to forbid, an act of a party." (Ibid.)

In saying that the removal order enjoins Yelp from engaging in "independent conduct," Justice Kruger strays from the meaning of that term as used in the cases she cites. (See Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc. (Fed.Cir. 1996) 96 F.3d 1390, 1395; Paramount Pictures Corp. v. Carol Publishing Group, Inc. (S.D.N.Y. 1998) 25 F.Supp.2d 372, 375-376.) In those cases, as in Alemite, a plaintiff obtained an injunction against one or more defendants for patent or copyright infringement and thereafter sought to bind nonparties to the injunction based on the nonparties' acts of infringement. This was prohibited, the courts explained, because the nonparties had engaged in their own acts of infringement separate and apart 563 *563 from the defendants' infringing acts that were the subject of the injunction. (See Flowdata, at pp. 1395-1397; Paramount Pictures, at pp. 375-376.) "Independent conduct" in this context means conduct by a nonparty that is allegedly unlawful independent of the defendant's wrongdoing; it does not encompass conduct by a nonparty that facilitates the defendant's wrongdoing. Indeed, Flowdata recognized — with no misgivings about due process — that courts have authority to issue a directive to a nonparty when "`necessary or appropriate to effectuate and prevent the frustration of orders'" directed at a party. (Flowdata, at p. 1396, quoting United States v. New York Telephone Co. (1977) 434 U.S. 159, 172 [54 L.Ed.2d 376, 98 S.Ct. 364] [court may require telephone company to cooperate with installation of pen register device].) Alemite, Flowdata, and Paramount Pictures would be more on point if the trial court had ordered Yelp to remove identical reviews posted by people other than Bird. But the removal order targets only the reviews written by Bird, the defendant in the underlying suit.

This court long ago observed that "it has been a common practice to make the injunction run also to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders, abetters, etc., though not parties to the action, and this practice has always been upheld by the courts, and any of such parties violating its terms with notice thereof are held guilty of contempt for disobedience of the judgment." (Berger v. Superior Court (1917) 175 Cal. 719, 721 [167 P. 143] (Berger).) Justice Kruger doubts that "Bird acts, or has ever acted, `through' Yelp in the sense relevant under Berger" (conc. opn. of Kruger, J., ante, at p. 552) and suggests that Yelp's conduct here is merely passive. But such a characterization of Yelp's role blinks reality.

If Bird had gone to the town square every day to shout defamatory comments about Hassell, or if Bird had made those comments to 50 friends, it is doubtful this case would be here today. Instead, Bird posted a review on Yelp, a website that attracts tens of millions of visitors every month. Yelp is an interactive service provider dedicated to inviting people like Bird to post reviews of local businesses and inviting users to search, sort, and read those reviews (all while exposing website visitors to advertisements). Yelp formats the reviews, makes the reviews searchable, and aggregates reviews of each business into a rating from one to five stars. Yelp's terms of service make clear to reviewers that "[w]e may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms." The terms of service also state that Yelp owns "visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Site Content, computer code, products, software, aggregate user review ratings, 564 *564 and all other elements and components of the Site excluding Your Content, User Content and Third Party Content."

The treatment of user comments by other websites may be more passive, and I do not suggest that any website that posts user comments may be subject to a removal order like the one here. But Yelp's relationship with reviewers like Bird is not passive. Even if Yelp was not Bird's agent or servant (cf. Ross v. Superior Court (1977) 19 Cal.3d 899, 905-909 [141 Cal.Rptr. 133, 569 P.2d 727] (Ross); In re Lennon (1897) 166 U.S. 548, 555-556 [41 L.Ed. 1110, 17 S.Ct. 658]), it is evident that Bird acted through Yelp in the most relevant sense: It was Bird's defamation of Hassell, facilitated by Yelp's willing and active participation, that the trial court sought to enjoin. The removal order directed at Yelp is an example of the "common practice" of "mak[ing] the injunction effectual against all through whom the enjoined party may act, and to prevent the prohibited action" — here, the continued display of Bird's defamatory reviews on Yelp — "by persons acting in concert with or in support of the claim of the enjoined party." (Berger, supra, 175 Cal. at p. 721, italics omitted.)

Justice Kruger suggests that whether Bird acted through Yelp in a manner that made Yelp a proper subject of the injunction is an issue on which Yelp had a right to notice and an opportunity to be heard before the injunction issued. (Conc. opn. of Kruger, J., ante, at p. 553, fn. 3.) But I agree with the Court of Appeal that "a trial court does have the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding." (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1357, rev. granted.)

Again, Alemite is instructive. After obtaining an injunction "against John, `his agents, employees, associates and confederates,' enjoining them from infringing, or `aiding or abetting or in any way contributing to the infringement,' the aggrieved plaintiff initiated an action "to punish Joseph for contempt, asserting that he was bound by the decree" as a nonparty within the ambit of the injunction's terms. (Alemite, supra, 42 F.2d at p. 832.) It is true that Joseph had notice and an opportunity to be heard in the contempt proceeding, and he convinced the district court that his new act of infringement had no connection to John's prior act of infringement that was the subject of the injunction. But suppose the district court had concluded otherwise and found Joseph in contempt. That determination would rest on the premise that the injunction validly applied to Joseph when it was issued (provided he had notice of it, which he did). If Joseph could not have been bound by the injunction because he had no notice or opportunity to be heard before it was issued, then he could not have been punished for contempt under any scenario. Joseph could only have been bound by a new injunction 565 *565 after being heard on the nature of his conduct; he could not have been punished for violating the existing injunction. Yet Alemite provides no support for this view. Instead, Judge Hand recognized the validity of punishing a nonparty who "has helped to bring about" the prohibited act of a party as a narrow exception to the general rule that an injunction can apply only to persons who have had "their day in court." (Id. at p. 833.)

In Ross, supra, 19 Cal.3d 899, we rejected the local supervisors' claim that they could not be held in contempt for violating an injunction directed at state officials and their "`agents'" (id. at p. 906) because they were not parties to the suit in which the injunction was issued and "received no notice and were afforded no opportunity to defend that action" (id. at p. 905). We determined that the local supervisors were, by statute, "agents" of the state officials for purposes of administering welfare benefits, notwithstanding the supervisors' arguments to the contrary. (Id. at pp. 906-909.) The supervisors had no opportunity to present their arguments that they were not "agents" of the state before the injunction issued — yet we upheld the finding of contempt because they "wilfully refused to comply with the judgment." (Id. at p. 904.) In other words, the injunction was binding on the supervisors when issued, even though they had no notice or opportunity to be heard beforehand. Justice Kruger does not explain how, under her view, the supervisors in Ross could have been bound.

The only difference here is that the injunction names Yelp instead of using a general phrase to refer to nonparties (e.g., "Bird's agents, employees, associates, confederates, aiders and abettors") as in Alemite and Ross. But that makes no difference to the due process inquiry. Yelp may yet argue in a contempt proceeding that its relationship to Bird's tortious conduct was not sufficient to justify the trial court's removal order. But if that argument were to fail, the fact that Yelp — like the supervisors in Ross — had no notice or opportunity to be heard before the trial court issued the injunction would not preclude a finding of contempt. Such a finding would necessarily mean the injunction was valid when issued.

Finally, the nature of Yelp's relationship to Bird that makes Yelp a proper subject of the injunction is not that of a "publisher or speaker" for purposes of section 230 immunity. Yelp's obligation to remove Bird's defamatory reviews does not stem from any judgment as to the legality of any editorial decision by Yelp to publish Bird's speech. As noted, the only issue in the underlying suit was whether Bird, not Yelp, had defamed Hassell and her firm; the suit did not impose on Yelp any burdens of defending itself against liability for "potentially defamatory" statements. (Barrett, supra, 40 Cal.4th at p. 45.) Whether Yelp could claim section 230 immunity in a contempt proceeding on the ground that its continued refusal to remove Bird's reviews 566 *566 is a matter of editorial judgment, notwithstanding a state court judgment finding the reviews defamatory, is a matter not before us.

The Court of Appeal got it right: Yelp has no statutory immunity from the removal order, and the removal order directed at Yelp does not violate due process of law. I would affirm the judgment of the Court of Appeal.

CUÉLLAR, J., Dissenting. —

Even — indeed, perhaps especially — in a society that values free expression, people expect courts and statutes to offer them minimal protections from disparaging misrepresentations or abject lies deliberately circulated to the public. Today's plurality opinion does not. Despite clear evidence that the federal Communications Decency Act of 1996 (Communications Decency Act) (47 U.S.C. § 230; hereafter section 230)^[1] was no trump card letting providers of "`interactive computer service'" (§ 230(f)(2)) such as Internet platforms evade responsibility for complying with any state court order involving defamation or libel, the plurality opinion posits that our state's protections against the willful spread of false, damaging information are just not compatible with the Internet. In reaching this conclusion, the plurality opinion unfortunately misconstrues the Communications Decency Act of 1996 and misapplies our precedent. It also runs the risk of misjudging the consequences of implying, in the early 21st century, that protections from libel, defamation, so-called "revenge porn," and similar actions are plenty available except, of course, where they arguably matter most: on the digital network that gives a lone voice in the public square a megaphone loud enough to be heard in the most remote corners of the planet.

In fact, the question this case presents is as novel as it is important — one undecided by this court or any other. We must resolve whether section 230 grants an interactive computer service provider immunity from complying with a properly issued state court order, and if not, under what circumstances a court may require such a service provider to remove posted information that a court has found defamatory. At core this case implicates a dispute not only about defamation on the Internet, but about whether a court can fashion an effective remedy that applies to Internet platforms. The plurality opinion is right to recognize that this question depends crucially on section 230 — but it also implicates due process principles, as well as California law governing court issued injunctions.

Yet the plurality opinion's answer to this question follows almost entirely from its analysis of section 230. Remarkably, it asserts that section 230 alone prevents a California court from directing Yelp Inc. (Yelp) to remove from its website statements that have been judicially adjudged defamatory. The plurality opinion expands this court's precedent to reach its conclusion and 567 *567 authorizes interactive computer service providers to flout California court orders by asserting section 230 immunity. In doing so, the plurality opinion endangers victims of torts committed online, impermissibly limits the remedies available to Californians who rely on our state courts for protection, and sanctions a rule bereft of justification under California or federal law, with troubling implications for an Internet-dependent society.

To the extent the plurality opinion maintains that section 230 acts as an absolute bar to this long-standing application of California law, we disagree — and so does a majority of the court. The plurality opinion's analysis of section 230 is no more compelled by the statutory language of section 230, the legislative history of the statute, or any previous case law broadly interpreting section 230 than it is by anything in California law. Although it explicitly addresses only section 230, the plurality opinion nonetheless concludes that there is no remedy for Dawn L. Hassell and her law firm, even through an injunction extended to Yelp. (Plur. opn., ante, at p. 547.) We disagree.

To provide the nuanced analysis necessary for resolution of the question before us, we identify the circumstances under which a California court may properly enjoin an interactive service provider. A California court has such power if it is wielded appropriately and in the right circumstances. Even in the context of this case, Justice Liu's opinion posits an injunction might be properly enforced against an interactive service provider. (See dis. opn. of Liu, J., ante, at pp. 565-566.) And as Justice Kruger explains, section 230 does not necessarily foreclose a state court from specifically naming and enjoining an interactive service provider, provided courts observe proper procedural safeguards. (Conc. opn. of Kruger, J., ante, at pp. 555-556, 557-559.)

We also contemplate a different situation in our analysis — one specifically raised by Yelp before the Court of Appeal and in its petition for review. Our analysis addresses whether the injunction, issued against Ava Bird and directing her to remove her defamatory posts from Yelp.com, may run to Yelp. We conclude that, under proper conditions, it may. Although the trial court in this case did not make sufficiently clear findings supporting the conclusion that Yelp acted as an agent of or conspirator with Bird, or aided and abetted her, circumstances may indeed arise where a nonparty interactive service provider is found to have developed such a close entanglement of interests — based on the provider's behavior before the injunction, and having received sufficient notice and opportunity to participate in the litigation.

What this case does not implicate is the kind of situation where section 230 does confer immunity — against a cause of action filed directly against the 568 *568 platform, seeking to hold it liable for conduct as the publisher of third party content. (Plur. opn., ante, at p. 535, citing Barrett v. Rosenthal (2006) 40 Cal.4th 33, 39 [51 Cal.Rptr.3d 55, 146 P.3d 510] (Barrett).) Our view diverges from the plurality opinion's conclusion that section 230 protects an Internet platform from complying with a state court order simply because the platform operates as the publisher of third party speech. We find no reason to read section 230 as categorically protecting an interactive service provider from responsibility to comply with a properly issued injunction from a California court. Underlying our conclusion is what we take to be the most sensible reading of the relevant statutory terms and structure, precedent and persuasive case authority, and practical considerations grounded in the statutory purpose as well as California law.

In pressing its argument to the contrary — that courts effectively have no power to affect what information an Internet platform posts — Yelp raises a variety of procedural and constitutional concerns. We take these concerns seriously, because fair adjudication and due process protections depend on an opportunity to be heard before a court for parties whose interests are at stake. But after careful review and reflection on applicable California and federal law, we do not believe Yelp offers a persuasive argument why the trial court is powerless to order removal of posted information by an interactive service provider that aids and abets the underlying violation. We also affirm a long-standing principle of California law that permits an injunction to run to a nonparty, where it has aided, abetted, or acted in concert with or support of the enjoined party to violate the terms of the injunction. We disagree with the plurality opinion's apparent assertion that section 230 categorically preempts the power of California courts to enforce injunctive remedies on nonparties because of their status as publishers. (Plur. opn., ante, at p. 543.) What we conclude instead is that Yelp may not assert blanket immunity under section 230, where no cause of action has been filed against and no liability has been imposed upon it as the speaker or publisher of third party content.

I.

Dawn L. Hassell and the Hassell Law Group (collectively, Hassell) filed suit against their former client, Ava Bird, on April 10, 2013. They alleged that Bird posted "factually inaccurate and defamatory remarks" about Hassell on Yelp.com. Although Yelp was not named as a defendant in Hassell's lawsuit, Hassell sent copies of the complaint to Yelp via fax and e-mail on May 15, 2013. In their prayer for relief, Hassell sought damages and injunctive relief prohibiting Bird from continuing to defame Hassell as well as removal of every defamatory review Bird published about Hassell from Yelp's website and anywhere else on the Internet.

569 *569 Bird never filed an answer to Hassell's complaint. She did, however, file a request with the Bar Association of San Francisco to mediate the lawsuit. Hassell attempted to engage in mediation with Bird, but Bird was nonresponsive to the assigned mediator's scheduling requests. Hassell requested an entry for default judgment on July 11, 2013, which included a declaration regarding Hassell's service on Bird. Hassell's notice of hearing and application for default judgment was filed on November 1, 2013, and the hearing was scheduled for January 14, 2014. Bird failed to appear at the hearing on Hassell's application for default judgment, and the superior court swore-in, examined, and accepted evidence from Dawn Hassell.

The superior court granted Hassell a default judgment against Bird, awarding over $550,000 in damages and an injunction requiring Bird to remove the defamatory reviews about Hassell from Yelp.com and anywhere else they appeared on the Internet. The default judgment entered in favor of Hassell on January 14, 2014, stated: "Plaintiffs' Request for Injunctive Relief is Granted. Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from Yelp.com and from anywhere else they appear on the internet within 5 business days of the date of the court's order. [¶] Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website. [¶] Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names `Birdzeye B.' and `J.D.' attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court's order." Hassell served Yelp's general counsel and its national registered agents with a copy of the judgment on January 15, 2014. Yelp's director of litigation responded by letter, asserting that Yelp would not comply with the injunction. Yelp informed Hassell that it could not be bound by the injunction, was immune from compliance with the order under section 230, and that Hassell improperly served Bird and failed to sufficiently prove defamation.

More than four months later, Yelp inserted itself into this case by filing a motion to vacate the superior court's default judgment as to Bird. On August 27, 2014, Yelp received a hearing on its motion to vacate the judgment against Bird. In its papers and at the hearing, Yelp argued that section 230 barred the injunction and that it could not be bound by the injunction as an agent or aider and abettor to Bird. The superior court found a factual basis to support Hassell's contention that Yelp aided and abetted Bird's violation of the injunction and included no discussion of section 230 in its order denying Yelp's motion to vacate the judgment against Bird. Yelp appealed.

570 *570 The Court of Appeal held that the injunction could be enforced against Yelp, and rejected Yelp's argument that section 230 granted it immunity from any responsibility to comply with the injunction. (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1356-1357, 1365 [203 Cal.Rptr.3d 203], review granted Sept. 21, 2016, S235968 (Hassell).) Addressing Yelp's challenge to the injunction directing it to remove posts from its website, the Court of Appeal held that under California law, an injunction can be applied to nonparties in appropriate circumstances. (Id. at p. 1355, citing Ross v. Superior Court (1977) 19 Cal.3d 899 [141 Cal.Rptr. 133, 569 P.2d 727] (Ross).) The court reasoned that these principles of California law undermined Yelp's theory that the trial court lacked authority to include in the judgment against Bird a provision ordering Yelp to effectuate the injunction against Bird by deleting her defamatory reviews. (Hassell, at p. 1356.) Yelp argued it was insulated from any responsibility to comply with an injunction issued against Bird, because the evidence did not establish that Yelp aided and abetted Bird's violation of the injunction. The court concluded that the specific aiding and abetting issue taken up by the trial court in this case had no bearing on whether the trial court, in principle, had authority to issue the injunction in the first place. (Id. at p. 1357.) The court held that California law "establishes that a trial court does have the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding." (Ibid.)

Yelp petitioned this court for review. It asked us to resolve two related issues: whether California law authorizes an injunction to extend to a nonparty online publisher, and whether section 230 prevents a court from enjoining and directing a website publisher to remove third party content from its website. We granted Yelp's petition for review.

II.

Time and again in the course of its extensive participation in this litigation, Yelp urged the court to embrace a specific reading of section 230. That reading would categorically shield Yelp from responsibility to comply with any conceivable injunction issued by the superior court. Only by conjuring immunity from a statute that does not provide it to advance a purpose putatively derived from a statute that does not embrace it can Yelp expect its argument on this score to persuade. We address Yelp's contention that section 230 prohibits a California court from crafting and effectuating an injunction that directs a website publisher to take specific action, including a directive to remove from its website content judicially deemed defamatory.

Yelp's own interpretation of section 230 is essentially the one embraced by the plurality opinion: that this provision works to immunize interactive 571 *571 service providers that post third party information or derivative content from compliance with state court orders that implicate their status as the publisher of third party content. The terms of section 230 lend no support to this interpretation. Enacted in 1996 as part of the Communications Decency Act, section 230 is entitled "Protection for private blocking and screening of offensive material." None of the terms included in section 230 suggest an immunity trump card from state court orders lurking in the statute's midst. Section 230 describes certain protections and obligations of interactive computer services, like Yelp. Section 230(a), "Findings," reflects that section 230 was adopted at a time of rapid development of the Internet, and with Congress's express recognition that Americans increasingly rely on the Internet for political, educational, cultural, and entertainment purposes. (§ 230(a).) The policy priorities described in section 230(b) demonstrate a concern with addressing objectionable and offensive material available online. In addition to policies encouraging the promotion, continued development, and preservation of the competitive free market for the Internet, the statute specifically enunciates policies to encourage the development of technologies that maximize user control over information received through the Internet and to remove disincentives for developing and utilizing blocking and filtering technologies to limit children's access to objectionable or inappropriate online content. (§ 230(b).) None of the policies within section 230(b) state or suggest an express immunity from compliance with state court orders.

The title of section 230(c) is "Protection for `Good Samaritan' blocking and screening of offensive material." What section 230(c)(1) provides is this: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Section 230(c)(2) explains that providers or users of interactive computer services shall not be liable for actions taken in good faith to restrict access to obscene, harassing, or objectionable material, regardless of whether such material is constitutionally protected, or for efforts to make available technology that restricts such material. (§ 230(c)(2)(A)-(B).) Section 230(c) does not endow Internet platforms with a complete immunity from compliance with state court orders. Rather, it enunciates protections where offensive material is voluntarily restricted, blocked, or screened. Section 230(d) outlines the obligations of interactive service providers to provide notification regarding parental control protections that assist a customer in limiting minors' access to harmful online material. (§ 230(d).) And section 230(e) explains that section 230 has no effect on certain federal and state laws. (§ 230(e).) Section 230(e)(3), which pertains to state and local laws, is particularly relevant here. It states only: "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of 572 *572 action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." (§ 230(e)(3).)

Because of the website it runs, Yelp is one of the entities functioning as a provider of interactive computer service. Such entities have both certain protections and responsibilities under the statute. (§ 230(d), (f)(2); see also Fair Housing Council of San Fernando Valley v. Roommates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1162, fn. 6 ["Today, the most common interactive computer services are websites"].) And Bird, the creator of information posted on Yelp.com, is an "`information content provider'" as a person "responsible, in whole or in part, for the creation or development of information" provided through the Internet or a website like Yelp. (§ 230(f)(3).) Hassell, the victims of defamation, filed their claim only against Bird — the originator of the defamatory speech — and not against Yelp, an interactive service provider. No cause of action or claim was ever filed against Yelp as an interactive service provider. (See § 230(e)(3).) Rather, Yelp's participation in this case was at its own demand, through a motion to invalidate Hassell's default judgment against Bird. The question is whether Yelp may assert section 230 immunity where the only cause of action relevant to this case was brought against Bird directly and no legal claim or liability is levied against Yelp.

By its terms, section 230 conspicuously avoids conferring complete immunity from all legal proceedings. Its language expressly permits the enforcement of certain federal criminal laws as well as state laws consistent with the section. (§ 230(e).) In the context of state law, the section 230 only prohibits causes of action from being brought and liability from being imposed under state laws that are inconsistent with the section. (§ 230(e)(3).) From the statute's terms, an inconsistent state law is one in conflict with the terms in section 230(c). An inconsistent state law under section 230(c)(1) is a state law cause of action or liability that treats an interactive computer service as the publisher or speaker of information provided by another information content provider. And an inconsistent state law under section 230(c)(2) is a state law cause of action that seeks to hold an interactive service provider liable for voluntary actions taken in good faith to restrict access to obscene, lewd, harassing, or otherwise objectionable material. If section 230 conferred complete immunity on an interactive service provider, as the plurality opinion implies, then lurking somewhere in the statute one would need to find an enormously consequential codicil of categorical absolution written in invisible ink to preempt the statute's more nuanced scheme.

There's no such codicil. Nor does Yelp even face "liability" here at all. (See § 230(e)(3).) The plurality opinion treats compliance with the court order pertaining to Bird's defamatory speech as a kind of liability against 573 *573 Yelp, arguing that liability is a broad legal term. (Plur. opn., ante, at pp. 544-545, citing Black's Law Dict. (6th ed. 1990) p. 914 (Black's 6th ed.).) But we define liability under section 230 as the term of art that it is in our legal system — meaning a financial or legal obligation, such as a duty of care under tort law, the breach of which gives rise to a tort lawsuit — that treats a service provider or user as the publisher or speaker of third party content. We find support for this interpretation in the commonly understood definition of "liability." (See Webster's 9th New Collegiate Dict. (1989) p. 687 [defining liability as "something for which one is liable; esp, pl: pecuniary obligations: DEBTS"]; see also Black's Law Dict. (10th ed. 2014) p. 1053 [defining "liability" as "being legally obligated or accountable" or a "financial or pecuniary obligation in a specified amount."].) As the plurality opinion readily acknowledges, "liability" was understood at the time the statute was enacted to include the imposition of damages. Indeed, it was defined at the time "to mean: all character of debts and obligations." (Black's 6th ed., supra, at p. 914.)

So liability in this context is best understood as a type of financial obligation, such as the responsibility to pay damages arising from a successfully litigated tort suit. This conclusion is bolstered by our own decisions, together with cases from other jurisdictions and the history of the statute at issue that liability in this context is essentially a type of financial obligation. (Black's Law Dict., supra, at p. 1055 [defining "tortious liability" as "redressable by an action for compensatory, unliquidated damages" and in some cases "by extracompensatory or punitive damages"].) As the plurality opinion acknowledges, in Barrett, this court explained that "Congress intended to create a blanket immunity from tort liability for online republication of third party content" (Barrett, supra, 40 Cal.4th at p. 57) and was specifically concerned with compelling regulation of service providers "at the sword point of tort liability" (id. at p. 53). We specifically cited subsequent legislative history affirming that Congress's purpose was to protect providers from liability for tort claims. (Id. at p. 54, quoting H.R.Rep. 107-449, 2d Sess., p. 13 (2002) ["The courts have correctly interpreted section 230(c), which was aimed at protecting against liability for such claims as negligence"].) One of the first cases to interpret section 230, Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran), explained that "Congress recognized the threat that tort-based lawsuits pose" and the purpose of the statutory immunity was to prohibit the "imposition of tort liability on service providers" in a burgeoning Internet. Zeran, on which the plurality opinion relies, expressed that section 230 was enacted to prevent the imposition of "tort liability on service providers for the communications of others." (Zeran, at p. 330.) This focus on tort liability suggests that Congress understood "liability" to mean tort liability, and supports our definition of liability as a financial obligation, like damages.

574 *574 The federal courts of appeals have also readily acknowledged Congress's concern with preventing tort liability against Internet platforms for third party speech. (See Doe v. Backpage.com, LLC (1st Cir. 2016) 817 F.3d 12, 23 [explaining that in enacting § 230, Congress chose to prohibit "`tort liability on companies that serve as intermediaries for other parties' potentially injurious messages'"]; see also Doe v. Internet Brands, Inc. (9th Cir. 2016) 824 F.3d 846, 852 [reasoning that § 230 is concerned with "`the imposition of tort liability upon companies that do not create potentially harmful messages'" but are merely intermediaries].) The injunction issued by the superior court does not demand any financial obligation of Yelp. The underlying judgment and award of damages pertains only to Bird and no damages or financial obligation are sought from Yelp. The only possible financial obligation Yelp might face would result from contempt proceedings and no such proceedings have occurred here.

All of which underscores why it is a contrast between apples and oranges — or apples and Oreos, for that matter — to compare a defendant's explicit targeting by a civil lawsuit with a person or entity's remedial responsibility to avoid helping others engage in prohibited conduct. A defendant to a state law cause of action may be subject to an adverse judgment triggering a responsibility to provide monetary or equitable relief to the plaintiff, and may incur litigation expenses to defend itself. In contrast, an entity that has not been sued is required only to refrain from engaging in prohibited actions. Yelp has not been sued, and its only responsibility in light of the judgment and injunction against Bird is to avoid violating that court order. Section 230 does not extend protection to a provider or user who violates an injunction by instead promoting third party speech that has been deemed unlawful by a California court. Yelp has an obligation not to violate or assist in circumventing the injunction against Bird, but that does not impose a legal obligation upon Yelp that treats it as a publisher or speaker of third party content. As we explained in Barrett, interactive service providers and users are exempt under section 230 "from defamation liability for republication." (Barrett, supra, 40 Cal.4th at p. 63.) We enunciated our concern that "subjecting Internet service providers and users to defamation liability would tend to chill online speech" as central to our holding that users and providers may not be sued directly and held liable for distributing defamatory speech. (Id. at p. 56.) But we did not interpret section 230 to expand its protections to a provider that acts in concert with another party to violate a court order or engage in prohibited acts. That sort of interaction would eliminate the "publisher" immunity contemplated in section 230(c)(1) and (e)(3). (See Barrett, at p. 63 (conc. opn. of Moreno, J.) [reasoning that publishers who conspire with original content providers "would not be covered by the immunity provided by ... section 230(c)(1) and (e)(3)"].)

575 *575 The plurality opinion belittles the state court injunction here as the result of a "tactical decision." The plurality implies the injunction is part and parcel of a nefarious "litigation strategy" advanced by Hassell solely to circumvent section 230. (Plur. opn., ante, at p. 541.) Using this lens, the plurality elides the distinction between causes of action filed directly against interactive service providers that seek injunctive relief and state court orders that contain injunctions. The few cases addressing injunctive relief did not extend section 230 immunity to a provider or user seeking to evade compliance with an injunction. Rather, those cases barred causes of action filed directly against the provider or user where the claims sought injunctive relief as a remedy. (See Kathleen R. v. City of Livermore (2001) 87 Cal.App.4th 684, 698 [104 Cal.Rptr.2d 772] (Kathleen R.) [reasoning that "even if for purposes of section 230 `liability' means only an award of damages [citation], the statute by its terms also precludes other causes of action for other forms of relief" such as taxpayer actions and claims for declaratory and injunctive relief filed directly against a provider or user]; see also Medytox Solutions, Inc. v. Investorshub.com, Inc. (Fla.Dist.Ct.App. 2014) 152 So.3d 727, 731 (Medytox) [concluding that § 230 "encompasses the claims for declaratory and injunctive relief filed directly against the interactive service provider].) These cases lend no support to the plurality opinion's assertion that a provider or user may invoke section 230 immunity to avoid compliance with an injunction, where no cause of action or claim has been filed. All of this makes it difficult at best to conclude that section 230's statutory terms somehow imply an unbounded immunity to a service provider, where no cause of action is lodged against it and no liability, meaning a financial or legal obligation that treats Yelp as the publisher of third party content, is sought.

Given the plurality opinion's embrace of an approach to section 230 that is not compelled or even much supported by the statutory terms, it is unsurprising that it is also an interpretation that does not follow from our precedent. And to the extent the plurality opinion concludes that section 230 operates as a blanket immunity for interactive service providers to disregard California court orders, it fails to garner support from a majority of the court. Just once before did this court consider section 230, in Barrett. What our opinion in that case addressed is only whether the federal statute grants the distributor of allegedly defamatory material immunity from a defamation lawsuit. (Barrett, supra, 40 Cal.4th at p. 39 ["We granted review to decide whether section 230 confers immunity on `distributors'"].) Our holding was limited to an interpretation of section 230 that "does not permit Internet service providers or users to be sued as `distributors,' nor does it expose `active users' to liability." (Barrett, at p. 63.) Barrett did not squarely consider whether an interactive service provider may avoid compliance with a properly issued state court 576 *576 order. We cannot rely solely upon it or any other precedent to resolve this case, but it remains instructive as we analyze, more broadly, the statute's breadth and limitations.

To reach our limited holding in Barrett, we weighed the meaning of section 230(c)(1) and (e)(3) together. We explained that "[t]hese provisions have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source." (Barrett, supra, 40 Cal.4th at p. 39.) Our reasoning in Barrett is consistent with the view that interactive service providers may invoke section 230 immunity to protect themselves from certain causes of action or liabilities, such as those seeking defamation liability based on the provider's publication or distribution of defamatory speech. (Barrett, at p. 63 ["section 230 exempts Internet intermediaries from defamation liability for republication"].) A plaintiff might file a state law defamation cause of action against an interactive service provider — one treating the provider "as the publisher or speaker" of "information provided by another information content provider," as described in section 230(c)(1). Under section 230(e)(3), a provider may escape that cause of action or avoid the liability sought in the plaintiff's claim. Barrett instructs that a defamation claim filed against Yelp for acting as the "distributor" of Bird's speech would be barred by section 230. But no such claim was filed against Yelp in this case.

Barrett clarified that a plaintiff aggrieved by defamatory speech must file its cause of action against the original speaker. We instructed that the proper procedure to address defamation in Internet publications is for plaintiffs "to pursue the originator of a defamatory Internet publication" and observed that "further expansion of liability must await congressional action." (Barrett, supra, 40 Cal. 4th at p. 63.) Hassell followed the procedure described in our prior opinion by filing their claims against Bird, the originator of the defamatory statements. In line with our directive, Hassell did not bring a cause of action for liability against Yelp. Hassell's lawsuit against Bird, the information content provider, fits with section 230's terms and our prior opinion.

In Barrett we found section 230 immunity protected an interactive computer service user sued directly for defamation liability. We held only that "by its terms section 230 exempts Internet intermediaries from defamation liability for republication." (Barrett, supra, 40 Cal.4th at p. 63.) Barrett specifically contemplated a state law tort claim filed against an interactive computer service user, which we deemed was inconsistent with section 230 because the defamation claim against the user sought to hold the user liable for defamatory speech authored by a third party. Whatever else is true of Barrett, it does 577 *577 not compel a finding that Yelp may invoke section 230 immunity where it is not the subject of a state law tort claim and where no liability is sought from Yelp for third party speech. The immunity that Yelp desires is conferred only when a state law claim is brought or a liability imposed that is inconsistent with section 230 because it regards the provider or user as the speaker of third party speech. (§ 230(c)(1), (e)(3).) Because these necessary conditions are not present in this case, we conclude that Yelp may not assert unlimited immunity where no cause of action or liability is imposed against it as the speaker or publisher of third party information.

This conclusion fits with what we held in Barrett. Congress's purpose was "to create a blanket immunity from tort liability for online republication of third party content." (Barrett, supra, 40 Cal.4th at p. 57.) Here, Hassell do not seek tort liability from Yelp for republishing Bird's content. Rather, Hassell filed suit directly against Bird, seeking liability in money damages and injunctive relief against Bird as the speaker and originator of the defamatory speech. As Yelp quotes in its opening brief, "`Plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.'" (Quoting Barrett, at p. 58.) Hassell did exactly that.

Yelp and the plurality opinion are left to rely on nonbinding case law from other jurisdictions — addressing markedly distinct circumstances — to support their strained interpretation of section 230. Yelp relies on the Fourth Circuit decision in Zeran, which held that lawsuits against interactive service providers seeking to hold the provider liable for decisions to publish, withdraw, postpone, or alter content are barred under section 230. (Zeran, supra, 129 F.3d at p. 330.) Zeran assessed a provider's immunity from a state tort claim and the Fourth Circuit's holding does not conflict with our reading of section 230. There, the victim of defamatory posts on an America Online (AOL) message board filed claims against AOL, an interactive service provider. (Zeran, at pp. 329, 332.) The plaintiff did not bring a cause of action against the poster of the offensive messages, but instead sought to hold AOL liable for the third party's defamatory speech. (Id. at pp. 329-330.) Addressing whether AOL could assert section 230 as an affirmative defense to the claims against it, the court reasoned that "[section] 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." (Zeran, at p. 330, italics added.) What the court addressed is section 230 immunity for tort claims filed against an interactive service provider, not immunity for a claim against the originator of the defamatory speech. Under these facts, the court reasoned that websites faced with "lawsuits seeking to hold a service provider liable" for the decision to publish, withdraw, or alter content, may enjoy section 230 immunity. (Zeran, at p. 330.) Zeran's holding is inapposite here, where Hassell filed their claim against the speaker of the defamatory speech, and not 578 *578 Yelp, as the interactive service provider. No claim was ever brought against Yelp seeking defamation or tort liability for its editorial decisions. Yelp and the plurality opinion's extension of section 230 immunity to any circumstance in which a service provider exercises a publisher's traditional editorial functions goes beyond the federal court's holding in Zeran.

Yelp and the plurality opinion also cite Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 (Barnes), a Ninth Circuit case that considered state law claims brought against an interactive service provider. (Id. at p. 1099.) This Ninth Circuit opinion provides a framework to assess whether a cause of action filed against a provider seeks to treat the provider as a publisher or speaker of third party information. But applying the framework offered in Barnes to the instant case does not compel the conclusion that section 230 grants complete immunity to a provider seeking to evade compliance with a state court order.

Plaintiff Barnes's ex-boyfriend created and posted fake online profiles of Barnes on a website run by Yahoo. The profiles featured naked photographs and solicitations to engage in sexual intercourse. (Barnes, supra, 570 F.3d at p. 1098.) In accordance with Yahoo's policy, Barnes submitted a signed statement that she did not create the profiles, requested their removal, and included the required supporting documentation. She was eventually contacted by Yahoo's director of communications who assured her Yahoo would "take care of her removal request. (See id. at pp. 1098-1099.) Barnes claimed she relied on that statement and took no further action. Two months later, still with no word from Yahoo, Barnes filed a lawsuit against Yahoo alleging a state law tort claim for negligent undertaking and a state law contract claim for promissory estoppel. Yahoo argued it was immune from liability under section 230.

The Ninth Circuit first explained that no provision of section 230 "declares a general immunity from liability deriving from third-party content." (Barnes, supra, 570 F.3d at p. 1100.) The court rejected Yahoo's assertion that section 230(c)(1) granted blanket immunity from any liability arising from third party information and read section 230(c)(1) and (e)(3) together, explaining that subdivision (e)(3) makes the terms of subdivision (c)(1) explicitly relevant, as subdivision "(c)(1) only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider." (Barnes, at pp. 1100-1101, fn. omitted.) The Ninth Circuit defined the inquiry for section 230 immunity as "whether the cause of action inherently requires the court to treat the defendant as the `publisher or speaker' of content provided by another." (Barnes, at p. 1102.) The court "must ask whether the duty that the plaintiff 579 *579 alleges the defendant violated derives from the defendant's status or conduct as a `publisher or speaker,'" and if so, section 230 precludes liability. (Barnes, at p. 1102.)

Neither description of this test from Barnes carries the day for Yelp. Barnes's assessment was limited to a claim filed against a provider and conceived of section 230 immunity only where that defendant provider was sued as liable for third party speech. This analysis addresses a claim or theory of recovery filed against the defendant — not a third party, as in the instant case. The causes of action here are Hassell's defamation claims against Bird. The court must assess whether those causes of action "treat the defendant as the `publisher or speaker' of content provided by another." (Barnes, supra, 570 F.3d at p. 1102.) The answer is no. Bird, as the defendant, is treated as the speaker of her own speech. Hassell's claims were filed against the party they seek to hold liable: Bird. Hassell does not seek to hold Yelp liable as the publisher of Bird's content. That Yelp functions as a publisher of Bird's speech does not in itself grant Yelp complete immunity under section 230. The liable party, who is subject to the defamation liability judgment, is Bird — not Yelp. Hassell's claim against Bird for defamation does not treat Yelp as a publisher or speaker of Bird's speech. No immunity exists under section 230 under these circumstances.

What the test in Barnes treats as critical is whether the defendant's acts relate to the defendant's status or conduct as a publisher or speaker. Yelp suggests this test should be manipulated to ask whether the duty Yelp (a nonparty, and not a defendant) violated derives from Yelp's status or conduct as a publisher or speaker. This reformulation of the Barnes test does nothing to advance Yelp's position. Yelp's duty is not the result of its status or acts as a publisher. Yelp's duty is to refrain from violating the injunction or assisting Bird in evading the injunction. (See Barnes, supra, 570 F.3d at p. 1107 [reasoning that liability "would come not from Yahoo's publishing conduct, but from Yahoo's manifest intention to be legally obligated to do something, which happens to be removal of material from publication"].) Yelp's obligation could arise from a valid conclusion that it aided and abetted unlawful conduct or a subsequent contempt proceeding. Neither of these amounts to a direct claim alleging Yelp engaged in defamation or the publication or distribution of defamatory speech. Again we find no support for far-reaching conclusions about section 230 immunity.

Yelp also claims the Court of Appeal misread section 230(e)(3) by construing it to limit the broad immunity allegedly established by 230(c)(1). Yelp argues that Barnes concluded that section 230(c)(1), by itself, shields from liability all publication decisions, including whether to post or remove content generated by third parties. We are not persuaded by Yelp's argument, 580 *580 and a careful reading of the discussion in Barnes shows why. The Ninth Circuit's statement was not an assertion that state law claims may be barred solely on authority conferred by section 230(c)(1). As previously discussed, the Ninth Circuit framed its assessment under section 230 as an interplay between section 230(c)(1) and (e)(3). And this sentence cited by Yelp was just one statement within a longer discussion about the separate roles of section 230(c)(1) and (2). (See Barnes, supra, 570 F.3d at p. 1105 ["A closer look at the whole of section 230(c), we believe, makes sense of this apparent contradiction. Subsection (c)(1), by itself, shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties. Subsection (c)(2), for its part, provides an additional shield from liability...."].)

The plurality opinion posits that the trial court's order overrules Yelp's decision to post the defamatory review and is therefore barred by section 230. (Plur. opn., ante, at pp. 541-542.) But the plurality's conclusion doesn't follow from its premise, because section 230 no more preempted all state law governing injunctions than it preempted all state law governing defamation. Yelp's obligation here is to refrain from violating the injunction issued against Bird. An obligation not to act in concert or with an enjoined party to violate the terms of an injunction is not a cause of action or a financial or legal obligation treating Yelp as the publisher or speaker of Bird's speech. This obligation does not hold Yelp to account for its publication decisions such that it is treated as the publisher of Bird's speech. It holds Yelp accountable for aiding, abetting, or acting in concert with or support of Bird as the enjoined party. The plurality opinion purportedly recognizes Hassell obtained a default judgment and injunction against Bird, and acknowledges that California law requires nonparties to comply with injunctions in appropriate circumstances. What it seems to overlook are the implications of these observations when section 230 is read correctly and no due process problems exist: that the provision of the injunction directing Bird to remove her defamatory posts could run to Yelp and similarly situated entities. (Plur. opn., ante, at p. 542.)

The plurality opinion acknowledges that even under its reading of section 230, Yelp could conceivably be forced to comply with an injunction. (Plur. opn., ante, at p. 542.) Of course it can, but our focus is on the issue most directly raised by this case — the injunction provision directing Bird to remove her defamatory posts, and whether that injunctive duty may be enforced against Yelp. Our conclusion is that section 230 does not categorically ban enforcement of the injunction against Bird, Yelp, or similarly situated entities.

Yelp and its supportive amici curiae cite other nonbinding cases to press the case for Yelp's complete immunity under section 230. These cases are 581 *581 distinguishable from the issue at hand because they addressed defamation liability claims or causes of action filed directly against an Internet service provider or user. As we have explained, no cause of action was filed against Yelp as an interactive service provider. Relying on these cases, Yelp petitions for an expansion of section 230 immunity beyond what this court or any other has previously held. That a certain kind of injunction may be barred by section 230 does not compel a conclusion or even strongly imply that service providers are immune from compliance with any properly issued injunction simply because they are service providers as defined in the statute.

Nowhere in section 230 or anywhere else in the Communications Decency Act is there support for the conclusion that injunctions issued by state courts are categorically barred. Yelp and the plurality opinion cite a California Court of Appeal opinion and a case from an appellate court in Florida as evidence that section 230 prohibits interactive service providers and users from being enjoined. (Plur. opn., ante, at pp. 537-538, 544-545.) This nonbinding case law permitting section 230 immunity for service providers and users sued directly for injunctive relief is not determinative of this case.

Kathleen R. addressed state law claims filed against an interactive service provider seeking injunctive relief and damages. Relying on section 230(e)(3), the Court of Appeal explained that "claims for declaratory and injunctive relief are no less causes of action than tort claims for damages, and thus fall squarely within the section 230(e)(3) prohibition." (Kathleen R., supra, 87 Cal.App.4th at p. 698.) Notably, the court in Kathleen R. did not rely solely on the terms of section 230(c)(1) to assert a complete immunity; rather, the court looked expressly to the section 230(e)(3) requirement that no causes of action may be brought and no liabilities may be imposed against interactive service providers. The claims were barred, not because the plaintiff sought injunctive relief, but because she brought causes of action against a service provider directly. Our understanding of section 230 does not conflict with Kathleen R: Under section 230(c)(1) and (e)(3), section 230 immunity may apply to a state law claim filed against a provider that seeks injunctive relief. We find no support to go further and interpret section 230 as immunizing websites from having to comply with any properly issued state court injunction.

Nor does Yelp or the plurality opinion's reliance on Medytox compel such a conclusion. That Florida Court of Appeal decision addressed an action for declaratory and injunctive relief against Investorshub.com, an interactive service provider. (Medytox, supra, 152 So.3d at p. 729.) Medytox sued Christopher Hawley for defamation and tortious interference after he posted statements about Medytox on Investorshub.com. (Ibid.) Medytox requested that Investorshub.com remove Hawley's posts, which contained "allegedly 582 *582 defamatory statements" about Medytox. (Ibid.) Investorshub.com removed two of the posts and Medytox sued Investorshub.com for failure to remove all of the allegedly defamatory postings. (Ibid.)

The court reasoned that section 230(e)(3) "precludes not only `liability,' but also causes of action for other forms of relief" based on state or local law. (Medytox, supra, 152 So.3d at p. 731.) The court explained that "[a]n action to force a website to remove content on the sole basis that the content is defamatory is necessarily treating the website as a publisher, and is therefore inconsistent with section 230." (Ibid.) That the plaintiffs filed an action directly against an interactive service provider seeking removal of third party information was an essential fact supporting the court's conclusion. Medytox imposed a different burden from that presented here: a burden on the provider to defend itself against a cause of action seeking liability for third party speech. No claim was filed against Yelp seeking damages or injunctive relief based on posts written by Yelp users. Medytox provides no persuasive or controlling authority in favor of Yelp's position.

What we find more instructive are practical considerations — ones consistent with the Communications Decency Act and to some extent motivated the federal statute. These remain vital as we consider the powers of a sovereign jurisdiction whose authority has not been explicitly curbed. Our proposed reading of section 230 supports the statute's purpose to protect service providers from state law causes of action and liabilities that treat the provider as the publisher or speaker of third party speech. Here, no cause of action seeks to hold Yelp liable for its publication of Bird's speech. We instead address a court ordered solution for a victim of defamation that does not infringe section 230's protections from state law causes of action and liabilities against providers for acting as publishers or speakers of third party speech. California citizens rely on the power of our courts to protect and vindicate their rights. Our interpretation recognizes that the statute does not prohibit court crafted remedies for victims of harmful Internet content. The plurality opinion is incorrect in its assertion that allowing the injunction against Bird to run to nonparty Yelp would contravene Congress's intent to protect providers from defending against claims that treat them as a publisher or speaker of third party content. (Plur. opn., ante, at pp. 546-547.) Yelp thrust itself into this case by petitioning the superior court to vacate the defamation judgment that Hassell obtained against Bird. The court order against Bird determined the specifically identified posts were defamatory and should be removed. The superior court's determination regarding Bird's defamation liability was just that — a determination about Bird's defamation liability, not a claim against Yelp requiring it defend itself against a civil lawsuit. In its own terms of service, Yelp conveys that it engages in removal of posts, specifying that it can "remove, screen, edit, or reinstate User Content from time to time at our sole discretion for any reason or no reason, 583 *583 and without notice to you. For example, we may remove a review if we believe it violates our Content Guidelines." Yelp's terms of service specifically contemplate the removal of defamatory posts, as their content guidelines caution users against posting content "that is false, intentionally misleading, or defamatory." Yelp could have simply removed the posts, in accordance with its terms of service, without incurring any significant litigation cost or burden. Nothing is excessively burdensome as a matter of law about the removal of posts a California court has deemed defamatory, even if Yelp would much prefer to wash its hands of this responsibility.

Instead Yelp chose to initiate legal proceedings. It did so by petitioning the court, on its own motion, to vacate a judgment against a party with whom Yelp claims it shares no interests.^[2] Yelp did so in order to claim complete immunity under section 230 and assert defenses on Bird's behalf. Insofar as Yelp desired a venue through which to defend its own speech interest, Yelp's speech and original content are not protected by section 230. Providers may only assert immunity from causes of action brought against them that treat the provider as the publisher or speaker of content provided by other information content providers — not content generated by the service provider itself. (See § 230(c)(1), (e)(3).) And when Yelp created an opportunity to assert its own speech interest, it instead argued that Hassell failed to sufficiently prove her defamation claim and subverted the First Amendment rights of Yelp users, as third parties. Yelp argued that Hassell failed to provide Bird adequate notice of the defamation lawsuit, made insufficient efforts to locate Bird, and failed to prove that Bird authored the posts at issue. Yelp now claims that it was entitled to an opportunity to be heard regarding its own speech interest before the judgment and injunction against Bird were entered.

The plurality opinion posits that our interpretation of section 230 creates incentives for plaintiffs to provide little or no prejudgment notice to service providers and users. (Plur. opn., ante, at pp. 546-547.) What the plurality opinion fails to recognize are procedural safeguards embedded in the process governing when an injunction against a party defendant may run to a nonparty like Yelp. Under California law, the injunction against Bird may only run to Yelp where Yelp has actual notice of the injunction. Under this scenario, notice to Yelp occurs before the injunction may be extended, and there is no danger of disincentivizing the provision of notice. Even in situations where an injunction might conceivably run to a nonparty based on 584 *584 pre-injunction conduct, the record must reflect sufficient entanglement of interests and action to warrant a finding of aiding and abetting under Berger v. Superior Court (1917) 175 Cal. 719 [167 P. 143] (Berger) and Ross, and the nonparty would otherwise need sufficient notice and opportunity to participate in accordance with due process principles. (Ross, supra, 19 Cal.3d at p. 906; Berger, at p. 721.) That Yelp in this case had considerable notice and opportunity to participate in the proceedings underscores that these requirements do not categorically prevent responsibility for removal of defamatory information from being imposed on a nonparty on the basis of its pre-injunction conduct. (See Ross, at p. 909.)

Given the range of circumstances where state law may properly impose responsibility on an entity such as Yelp without imposing "liability," we question whether it was within the ambit of congressional purpose that the statute preclude any effective remedy for people defamed or injured by Internet content. Recall that here, Bird failed to ever respond in the superior court proceedings. The record indicates that she was aware of the lawsuit addressing her posts, as evidenced by her request to the Bar Association of San Francisco for mediation, but she refused to defend her speech in court or comply with the judgment or injunction. Bird is also apparently judgment proof. The underlying facts of this case are far from unique, and many aggrieved Californians may find themselves in similar circumstances. Nothing in the legislative history supports the idea, implicit in the plurality opinion's position, that Congress reasonably sought to deprive victims of defamation and other torts committed online of any effective remedy.

Our reading of section 230 takes account of what it means, practically, to let providers spurn state court orders. It considers as well the statute's express directive that section 230 shall not be construed to prevent a state from enforcing laws consistent with the section. (§ 230(e)(3).) At core, the plurality opinion reads as though it finds section 230 a definitive barrier to imposing any injunctive responsibility on service providers. (Plur. opn., ante, at p. 547.) That reading of section 230 would render state courts incapable of providing effective relief to their citizens when providers make "editorial" decisions that permit defamatory or injurious speech to remain on the Internet, even where that speech has been deemed unlawful. A complete immunity for interactive service providers under section 230 would preclude remedies for victims of defamation where the content providers are unavailable, like in circumstances of absentia or death, and where the website operator is unsympathetic. Victims would be without recourse where, as here, the service provider refuses to remove content even when that content violates the provider's terms of service. And under the expansive immunity Yelp demands, harmful statements that could be retracted or removed if made in print could remain online indefinitely with no recourse.

585 *585 These concerns loom especially large in the context of the modern Internet. The Internet has the potential not only to enlighten but to spread lies, amplifying defamatory communications to an extent unmatched in our history. The resulting injuries to individuals' reputational interests from defamation, revenge porn, and similar content can be grave and long lasting, and negative effects on businesses can be equally or more severe. Speakers on the Internet can reach huge audiences across the country and internationally, and the perpetuation of fake, defamatory, and harmful content has implications for critical social issues, including consumer protection, personal safety, disaster and violence prevention, and government independence. The plurality opinion contends that we advance an interpretation of section 230 that threatens the promotion of online discourse and thwarts Congress's intent. (Plur. opn., ante, at pp. 546-547.) Not so. Online freedom is not so fragile that its existence depends on eviscerating courts' power to protect people from defamatory information or other communications lacking lawful protection. Indeed, under our interpretation, a nearly infinite range of interactions online remain available — ones that do not involve the spread of information courts have found defamatory or otherwise unprotected by law. Our reading of section 230 recognizes Congress's concerns regarding the availability of objectionable and inappropriate online material and its interest in encouraging interactive computer service providers to voluntarily restrict access "in good faith" to material that is obscene, lewd, harassing, or otherwise objectionable, regardless of whether such material is constitutionally protected. (§ 230(c)(2)(A).) That concern makes the plurality opinion's conclusion particularly ironic: It construes a statute entitled "Protection for private blocking and screening of offensive material" as one meant to promote the limitless perpetuation of offensive online content, rather than to protect the voluntary removal and screening of such material. (§ 230.) We conclude instead that section 230 does not endow an interactive service provider with absolute immunity from complying with a court order that includes injunctive relief simply because it functions as a publisher.

III.

Our analysis of section 230 lends further importance to a procedural and remedial question Yelp raised in its petition: May an injunction be extended to a nonparty website acting in concert with an enjoined party? From Yelp's vantage point, the answer is a simple no. Hassell's injunction against Bird therefore may not be enforced against Yelp as a nonparty. We disagree. California law is clear that injunctions may be enforced against a nonparty that has notice of the injunction and aided, abetted, or otherwise acted in concert with or support of the enjoined defendant to violate the injunction.

California's long-standing practice is to allow enforcement of injunctions against certain nonparties — and rightly so. Berger is the seminal case from 586 *586 this court regarding injunctions against nonparties. Injunctions are typically binding on the parties to the action and their successors. But an injunction may be enforced against a nonparty in order to prevent the prohibited action by nonparties acting in concert with, or in support of, the enjoined party. (Berger, supra, 175 Cal. at p. 721 ["In matters of injunction, however, it has been a common practice to make the injunction run also to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders, abettors, etc., though not parties to the action, and this practice has always been upheld by the courts, and any of such parties violating its terms with notice thereof are held guilty of contempt for disobedience of the judgment"].) Where a nonparty is in fact, an aider and abettor of the enjoined party, the injunction may be imposed upon that nonparty. (Ibid.)

We have affirmed this long-standing principle of California law before. (Ross, supra, 19 Cal.3d at pp. 908-909 [concluding that nonparties were subject to an injunction as agents of the named defendants]; In re Berry (1968) 68 Cal.2d 137, 155-156 [65 Cal.Rptr. 273, 436 P.2d 273] (Berry) [recognizing that "injunctive orders to persons `in active concert or participation with' specifically named parties defendant is approved by long-standing custom and practice"]). And federal law similarly provides that nonparties may be enjoined. The United States Supreme Court in In re Lennon (1897) 166 U.S. 548, 554 [41 L.Ed. 1110, 17 S.Ct. 658] explained that it is immaterial whether a nonparty had notice of the application for injunction or was actually served with a copy of the injunction so long as he had actual notice of the issuing of an injunction by the court. This rule was affirmed by the United States Supreme Court in Regal Knitwear Co. v. Board (1945) 324 U.S. 9 [89 L.Ed. 661, 65 S.Ct. 478] (Regal Knitwear), as cited throughout Yelp's briefs. And a federal case on which Yelp relies, Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563, 567 (Blockowicz), also explains that pursuant to rule 65(d) of the Federal Rules of Civil Procedure (28 U.S.C.), nonparties may be bound by an injunction. Yelp's contention that it may not be enjoined because it was not named as a defendant in Hassell's underlying claim is unsupported by California or federal law.

Under our precedent, an injunction may run to persons through whom the enjoined party may act, such as "persons acting in concert with or in support of the claim of the enjoined party, who are in fact his aiders and abett[o]rs." (Berger, supra, 175 Cal. at p. 721, original italics.) As we explained in Berger, nonparties may be bound by an injunction where they have knowledge of the injunction, are servants or agents of the enjoined party, or act "`in combination or collusion with them or assertion of their rights or claims.'" (Id. at p. 722, quoting Rigas v. Livingson (1904) 178 N.Y. 20, 24 [70 N.E. 107].) Any such parties who violate the terms of the injunction "with notice thereof are held guilty of contempt for disobedience of the judgment." (Berger, at p. 721.) The purpose "is simply to make the injunction effectual 587 *587 against all through whom the enjoined party may act," thereby preventing the acts prohibited in the injunction from being carried out by other persons acting in concert with or in support of the enjoined party. (Ibid., italics omitted.) The focus is not only on proper notice to vindicate the due process rights of nonparties to whom the injunction may run, but also on whether the nonparty acted in concert with or support of the enjoined party. (See Ross, supra, 19 Cal.3d at pp. 904, 916 [upholding a judgment of contempt where the nonparty "conceded that they had received notice of the court order ... and had knowingly voted to defy the order"]; Berger, supra, 175 Cal. at p. 723 [vacating a judgment of contempt where there was "neither charge nor findings by the lower court of matters showing what amounts to a disobedience of the injunction by the petitioner" (original italics)].)

These concerns are also reflected in rule 65(d)(2) of the Federal Rules of Civil Procedure (28 U.S.C.). It specifies that certain nonparties, "who receive actual notice" of the injunction and are "in active concert or participation" with the enjoined party may be bound by its terms. (Ibid.; see Regal Knitwear, supra, 324 U.S. at p. 15 [whether an injunction may be enforced against a nonparty "depends on an appraisal of his relations and behavior and not upon mere construction of terms of the order"].) Evidentiary findings assessing a nonparty's notice and acts in concert or participation with an enjoined party may occur at a contempt hearing, when the plaintiff seeks to enforce the injunction against a nonparty. (See Ross, supra, 19 Cal.3d at pp. 903-904; Regal Knitwear, supra, 324 U.S. at p. 16.)

So Berger, Ross, and Berry clearly establish that California courts may enforce an injunction against a nonparty. A nonparty subject to such an injunction must not only have notice of it, but must have aided, abetted, acted in collusion with or in assertion of the enjoined defendant's rights, or otherwise acted in concert with or support of the enjoined defendant to violate the injunction.

IV.

The Court of Appeal affirmed the superior court's denial of Yelp's motion vacating the default judgment against Bird. In doing so, the Court of Appeal concluded that the superior court had authority under settled principles of California law to include a provision in the injunction that ordered Yelp to effectuate the injunction against Bird by deleting her defamatory reviews from its website. (Hassell, supra, 247 Cal.App.4th at p. 1355, rev. granted.) Relying on the superior court's observation in its order denying Yelp's motion to vacate, the Court of Appeal reasoned that California law provides that injunctions can be applied to nonparties, such as agents, servants, employees, aiders, abettors, etc. (Ibid.) Having found no due process violation at the superior court proceedings, the Court of Appeal concluded that the 588 *588 superior court had the authority to issue the injunction directing Yelp to remove Bird's posts. (Id. at p. 1357.)

We do not believe the Court of Appeal was wrong to conclude that Yelp's degree of notice and involvement below assuaged due process concerns. By filing and appearing in the superior court to argue its motion to vacate the default judgment, Yelp initiated a proceeding through which it had opportunity to participate and be heard. The superior court considered Yelp's motion and held a hearing on August 27, 2014. In its papers and at the hearing, Yelp argued that as an interactive service provider, section 230 granted it immunity from compliance with the injunction because the reviews were provided by a third party. Yelp also availed itself of the opportunity to argue that the judgment, to the extent it was directed at Yelp, violated its due process rights as a nonparty. Yelp further asserted that Hassell did not sufficiently plead or prove their case. Specifically, Yelp argued that Hassell did not make any reasonable attempt to locate Bird before attempting service, did not prove that Bird was provided adequate notice of the action against her, and failed to submit evidence that confirmed Bird created the user accounts that authored the reviews at issue. And Yelp declared that the injunction against Bird could not bind Yelp because Hassell could not prove Yelp acted as an aider or abettor to Bird's disobedience of the injunction and it merely disregarded the injunction upon receiving a copy of the default judgment.

It is quite clear Yelp was able to participate and assert arguments against the entry of the injunction. Yelp did so at a motion to vacate the underlying judgment, without the initiation of any contempt proceedings, and after more than four months of inaction following the entry of the underlying judgment. Yelp's involvement at the hearing on the motion to vacate the default judgment, before it suffered any deprivation of its rights, was functionally equivalent to participation at the entry of the default judgment.

But this due process appraisal does not merge with the separate issue of what California law requires before a court imposes an injunction on a nonparty. A nonparty may indeed be enjoined where it has notice of the injunction and acts as an aider, abettor, or in concert with or in assertion of the enjoined party's rights. Section 230 does not grant a nonparty immunity from compliance with an injunction because it functions as a website or because the injunction touches upon the website's role as a publisher. The plurality opinion attempts to characterize our explanation that the injunction could run to Yelp under long-standing principles of California law as a theory premised merely upon Yelp's awareness of the injunction and its refusal to remove the defamatory reviews. (Plur. opn., ante, at pp. 543-544.) This assertion is inaccurate. Rather, we recognize that a judicial finding that Yelp had notice of the injunction and aided and abetted Bird's violation of the 589 *589 injunction may authorize the injunction to bind Yelp. Here, the Court of Appeal expressly declined to consider the superior court's aiding and abetting determination. (Hassell, supra, 247 Cal.App.4th at pp. 1355, 1357, rev. granted.) Without an assessment of Yelp's actions aiding, abetting, or acting in concert or with Bird to violate the terms of the injunction, the Court of Appeal's conclusion that Yelp may be specifically directed to remove Bird's posts appears unsubstantiated. The factual determination regarding Yelp's actual notice of the injunction and its participation as an aider or abettor is necessary before the injunction against Bird may run to Yelp.

Although few existing cases find an Internet platform to have acted as an aider and abettor, a range of evidence and interactions could support such a finding. For example, Yelp cites Blockowicz, a Seventh Circuit Court of Appeals case, to argue that its refusal to remove Bird's posts is mere "inaction" insufficient to prove it acted as an aider and abettor to Bird. We are not convinced that logic categorically protects Yelp from injunctions requiring removal of unlawful content. The Blockowicz court observed that the plaintiffs presented no evidence of any contact between the defendants and the website operator or manager after the injunction was issued, nor was there any indication that the defendants and the employees for the website worked in concert to violate the injunction. (Blockowicz, supra, 630 F.3d at p. 568.) What the court concluded is that the record indicated the website operator and manager simply did "nothing relevant to [the] dispute" after the injunction was issued, so their "mere inactivity is simply inadequate to render them aiders and abettors" in violating an injunction directing a user to remove defamatory statements from the website. (Blockowicz, supra, 630 F.3d at p. 568.) Here, Yelp's post-injunction involvement in this case, including its legal arguments on behalf of Bird, and its litigation director's written refusal of Hassell's removal request, suggest that Yelp has gone beyond the "mere inactivity" found in Blockowicz. (Ibid.) Moreover, if we believed a court could glean no support for an aiding and abetting finding based merely on a provider's failure to remove unlawful content after receiving notice of an injunction, the sum of a provider's conduct could still amount to aiding and abetting.

By using algorithms to facilitate further distribution of the information in question to a defendant's preferred audiences, for example, or providing certain financial support to the enjoined party, the provider could take action deemed for the benefit of, or to assist, that party. (See Arista Records, LLC v. Tkach (S.D.N.Y. 2015) 122 F.Supp.3d 32, 36 [reasoning that active concert or participation exists where a nonparty with actual knowledge of the judicial order violated it for the benefit of, or to assist, a party subject to the injunction].) An injunction may be enforced against a nonparty service provider where the provider's services are knowingly used to facilitate the violation of an injunction. (Ibid.) A provider advancing legal arguments on 590 *590 behalf of the defendant or seeking to vindicate the rights or claims of the defendant may also be deemed a nonparty properly bound by the injunction against the defendant. (See Berger, supra, 175 Cal. at pp. 721-722 [reasoning that nonparties may be bound by an injunction where they have knowledge of the injunction and act "in combination or collusion" with defendants or in assertion of defendants' rights or claims].) Where a service provider engages in these behaviors or otherwise acts in concert with a user to spread defamatory information, it would — at best — cut sharply against section 230's underlying logic to let the provider enjoy section 230 immunity. (Barrett, at p. 64 (conc. opn. of Moreno, J.) [concluding that § 230 immunity is not intended to apply where an interactive computer service provider and user are not "authentically independent" and act in concert to defame someone].)

A website's willful refusal to comply with an injunction, where compliance is feasible, may also provide evidence to support a finding that the service provider aided, abetted, or acted in concert, combination, or collusion with an enjoined defendant. (See Ross, supra, 19 Cal.3d at pp. 904, fn. 4, 916.) Evidence that a website prominently featured a defamatory review — to attract viewers or for other reasons — after it had notice of a defamation judgment and injunction directing the speaker to remove the defamatory post may indicate the provider has acted to violate the injunction in support of the enjoined party. A provider's actions to maintain unlawful Internet posts in concert with a defendant may support a factual finding of aiding, abetting, or acting in concert or in support of the defendant. So could situations where a defendant has reason to believe her content is unlawful but is encouraged by a provider to retain the content, or where a defendant attempts to remove unlawful content, but the provider retains the content citing its right to use, display, or promote the content under its terms of service. The plurality opinion appears to maintain in contrast that section 230 grants Yelp immunity from compliance with the injunction even where Yelp is found to have aided, abetted, or acted in concert with or support of Bird to violate the injunction. (Plur. opn., ante, at p. 543, fn. 14.) We are unpersuaded. Neither the plurality opinion's logic nor its reliance upon a nonbinding federal case support the conclusion that section 230 would bar as "publication decisions" all the conduct that a trial court might rely on to make valid factual findings that action in concert or collusion occurred between a service provider and a defendant.

In its order denying Yelp's motion to vacate the defamation judgment, the superior court first cited Ross and Berger to explain how injunctions can apply to nonparties under California law. The court then stated three factual findings with respect to whether Yelp aided, abetted, and acted in concert or with Bird in violation of the injunction. "First, the evidence establishes that Yelp highlighted at least one of Bird's defamatory reviews about the Hassell Law Firm on its website by featuring it as a `Recommended Review.'" 591 *591 Second, the court found that Yelp asserted arguments on Bird's behalf, evidencing a unity of interest between Bird and Yelp: "the facts indicate that Yelp is acting on behalf of Bird. Yelp moves to set aside the judgment in its entirety, including the portions of the judgment that pertain only to Bird. Additionally, in its moving papers, Yelp argues, on behalf of Bird, that Hassell failed to establish that Bird actually posted the Yelp reviews." Third, the court found that Yelp's refusal to delete the defamatory reviews "is inconsistent with its own terms of service, which require all Yelp.com users to `agree not to ... Violate our Content Guidelines, for example by writing a fake or defamatory review...'" The court found that "Yelp is aiding and abetting the ongoing violation of the injunction and that Yelp has demonstrated a unity of interest with Bird" and thus denied the motion to vacate the judgment.

From the hearing transcript, it is clear the superior court heard and asked questions about the evidence of Yelp's conduct to aid, abet, act in concert with or support of Bird. These questions explored Yelp's position in its papers and at oral argument, asserting that the underlying default judgment against Bird be vacated, that Bird received insufficient notice, and that Hassell failed to prove Bird authored the defamatory posts. But the superior court's order denying Yelp's motion to vacate the default judgment does not apply the law to the facts of this case with sufficient detail. For example, the superior court's finding that Yelp acted on behalf of Bird was not accompanied by an explanation of the legal basis for the superior court's conclusion. The superior court may have reasoned that under Berger, Yelp may be bound by the injunction because it acted "in assertion" of Bird's "rights or claims" in presenting arguments that Hassell failed to adequately serve Bird and submitted insufficient evidence that Bird created the defamatory posts. (See Berger, supra, 175 Cal. at pp. 721-722.) Yet the order does not describe the legal authority on which the court relied to reach its determination. Similarly, the superior court may have determined that the letter issued by Yelp's director of litigation asserting that it would not comply with the injunction, although removal of the posts was feasible and authorized under its terms of service, evidenced a willful refusal to comply with the injunction that supported an aiding and abetting finding. (See Ross, supra, 19 Cal.3d at pp. 904, fn. 4, 916.) But the superior court's order does not engage in an analysis of the legal bases for its conclusion that Yelp aided and abetted Bird in violating the injunction.

Whether Yelp aided, abetted, or acted in concert with or support of Bird's violation of the injunction must be assessed using the proper legal standard for an injunction to run to a nonparty, as enunciated in our precedent in Berger and Ross, and analyzed with sufficient detail. We would therefore 592 *592 vacate the judgment of the Court of Appeal and remand for further proceedings in accordance with the legal standard set forth in this opinion.^[3]

V.

Our society's legal commitments balance the value of free expression and a relatively unregulated Internet against the harms arising from damaging words or private images that people are not lawfully free to disseminate. To honor those commitments in this case, we must begin by properly interpreting the evocatively named Communications Decency Act. We must apply the relevant principles of due process that guarantee parties a right to their day in court. And we must give effect to California laws allowing injunctions to be imposed on nonparties when they are aiding and abetting unlawful conduct. No one involved in this litigation or affected by our decision today deserves anything less.

To the extent the Communications Decency Act merits its name, it is because it was not meant to be — and it is not — a reckless declaration of the independence of cyberspace. Nothing in section 230 allows Yelp to ignore a properly issued court order meant to stop the spread of defamatory or otherwise harmful information on the Internet. Instead the statute's terms and scheme, applicable case law, and other indicia of statutory purpose make clear that Internet platforms are not exempt from compliance with state court orders where no cause of action is filed against, and no civil liability is imposed on, the provider for its publication of third party speech. Yelp may be subject to a properly issued injunction from a California court. Where an entity had the extensive notice and considerable involvement in litigation that Yelp has had in this case, due process concerns are far less likely to impede a court from fashioning a proper injunction to prevent aiding and abetting of unlawful conduct. But whether Yelp aided, abetted, or otherwise acted sufficiently in concert with or colluded to advance Bird's defamatory conduct must be addressed using the proper legal standard for an injunction to run to a nonparty, as we explained in Berger and Ross. Because we cannot establish 593 *593 that the superior court made the necessary factual findings regarding Yelp's conduct in this situation, applying a legal standard consistent with the views expressed in this opinion, we would vacate the judgment of the Court of Appeal and remand for further proceedings not inconsistent with this opinion.

Stewart, J.,^[*] concurred.

[1] Subsequent undesignated statutory references are to title 47 of the United States Code.

[2] In a matter such as the one at bar, upon entry of a default, "[t]he plaintiff thereafter may apply to the court for the relief demanded in the complaint. The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff's favor for that relief, not exceeding the amount stated in the complaint, ... as appears by the evidence to be just." (Code Civ. Proc., § 585, subd. (b).)

[3] The Court of Appeal used the term "removal order" to describe only the sentence within the order that explicitly directs Yelp to remove the three reviews. We use this same term to describe the order generally.

[4] In connection with their opposition to Yelp's motion to set aside and vacate the default judgment, plaintiffs supplied documentation indicating that in May 2013, their attorney sent Yelp a facsimile that included a copy of the complaint against Bird, as well as the January 2013 and February 2013 reviews underlying the action. Counsel's facsimile cover letter concluded with his "expect[ation]" that Yelp would "cause these two utterly false and unprivileged reviews to be removed as soon as possible."

[5] After not appearing below, Ms. Bird has submitted an amicus curiae brief to this court. In her brief, Bird acknowledges writing the January 2013 "Birdzeye B." review, but denies authoring the February 2013 review from "J.D."

[6] The Court of Appeal's opinion also addressed several other issues not encompassed within our grant of review. (See Hassell v. Bird, supra, 247 Cal.App.4th at pp. 1348-1354, rev. granted.) We express no views regarding the Court of Appeal's analysis of those topics. We likewise have no occasion to opine on whether the challenged reviews are in fact defamatory, in whole or in part. Our analysis assumes the correctness of the superior court's determination on this point.

[7] This modification owed to the Court of Appeal's conclusion that "to the extent the trial court additionally ordered Yelp to remove subsequent comments that Bird or anyone else might post, the removal order is an overbroad prior restraint on speech." (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1360, rev. granted.) The Court of Appeal therefore remanded the case "to the trial court with directions that it modify the removal order consistent with this limitation." (Ibid.)

[8] Provisions of the Communications Decency Act of 1996 different from the ones presently before the court were struck down as unconstitutional in Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [198 L.Ed.2d 874, 117 S.Ct. 2329].

[9] Section 230(c)(2), another immunity provision within the statute, provides, "No provider or user of an interactive computer service shall be held liable on account of — [¶] (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or [¶] (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)." Yelp's claim of immunity invokes section 230(c)(1), not section 230(c)(2).

[10] The court in Kathleen R., supra, 87 Cal.App.4th 684, rejected the plaintiff's federal claim on a different ground. (Id., at pp. 698-702.)

[11] Barrett, supra, 40 Cal.4th 33, was clear that section 230 immunity is broad — not all encompassing. We recognized, for example, that "[a]t some point, active involvement in the creation of a defamatory Internet posting would expose [an otherwise immunized] defendant to liability as an original source." (Barrett, at p. 60, fn. 19; see also § 230(e)(1), (2), (4), (5) [describing areas of the law as to which § 230 immunity has no effect].)

[12] Although not directly pertinent to this case, we observe that in another instance where Congress became aware of procedural end runs around section 230, it took steps to rein in these practices — instead of regarding a judgment so obtained as a fait accompli that must be enforced, without further consideration of the circumstances surrounding it.

Specifically, in 2010 Congress enacted the Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act; 28 U.S.C. § 4101 et seq.). This measure responded to concerns that defamation judgments were being obtained in countries that did not recognize the same free-speech protections as those provided in the United States, "significantly chilling American free speech and restricting both domestic and worldwide access to important information" in the United States. (Sen.Rep. No. 111-224, 2d Sess., p. 2 (2010) (Senate Report No. 111-224).)

To combat forum shopping and "ensure that American authors, reporters, and publishers have nationwide protection from foreign libel judgments" (Sen.Rep. No. 111-224, supra, at p. 4), the SPEECH Act includes provisions such as one providing that "[n]otwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. [§] 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States." (28 U.S.C. § 4102(c)(1).)

[13] In arguing that section 230 immunity should not apply, Justice Liu emphasizes that here there was a judicial determination — albeit through an uncontested proceeding — that the challenged reviews are defamatory. (Dis. opn. of Liu, J., post, at p. 561.) We recognize that in applying section 230 a distinction could, in theory, be drawn between situations in which an injunction (or its extension to a nonparty) follows from a judicial finding of some kind, and scenarios where there has been no such determination. But we see no persuasive indication that this is a distinction Congress wanted courts to regard as decisive in circumstances such as these. (Accord, Giordano v. Romeo, supra, 76 So.3d at p. 1102.)

[14] As previously noted, when the trial court denied Yelp's motion to set aside and vacate the judgment, it emphasized several facts that, in the court's opinion, indicated Yelp was aiding and abetting Bird's violation of the injunction. The court observed that Yelp had featured at least one of Bird's defamatory reviews as a "Recommended Review"; that Yelp had not factored some positive reviews into the Hassell Law Group's overall rating; that Yelp had raised arguments in connection with its motion that would invalidate the judgment entirely, as opposed to merely the portion of the removal order specifically directed at it; and that Yelp refused to remove the reviews at issue, "notwithstanding a judicial finding that Bird's reviews are defamatory."

Even though it upheld the removal order in most respects, the Court of Appeal did not rely on an aiding and abetting theory to justify the extension of the injunction to Yelp. (See Hassell v. Bird, supra, 247 Cal.App.4th at p. 1364, rev. granted.) We expressly reject the argument, offered by Justice Cuéllar in his dissent (dis. opn. of Cuéllar, J., post, at p. 589), that the circumstances stressed by the trial court (plus, perhaps, Yelp's letter to Hassell, in which it explained its decision not to remove the reviews) might somehow serve to deprive Yelp of immunity. Most of these facts involve what are clearly publication decisions by Yelp. (See, e.g., Jones v. Dirty World Entertainment Recordings LLC, supra, 755 F.3d at pp. 414-415.) Meanwhile, we do not regard the letter relating the basis for Yelp's decision, or Yelp's failure to make only pinpoint challenges to the injunction in court, as somehow transforming the company into something other than a publisher of third party content for purposes of the removal order. Section 230 immunity is not that fragile.

[15] Justice Cuéllar would define "liability" within section 230(e)(3) as "a financial or legal obligation." (Dis. opn. of Cuéllar, J., post, at p. 573.) His dissenting opinion then proceeds as if the broad word "legal" within this very definition is irrelevant. This oversight is in a sense understandable, because, inconveniently, plaintiffs absolutely regard Yelp as having a "legal obligation" to comply with the removal order.

Yet Justice Cuéllar's equation of "liability" under section 230(e)(3) with only financial obligations raises other questions that cannot be satisfactorily answered. Among them, if "liability" involves only financial debts, it is unclear why Congress recently felt the need to exclude from section 230 immunity certain state law criminal actions associated with sex trafficking. (§ 230(e)(5)(B), (C).)

[16] There are numerous reasons why a removal order that appears facially valid may nevertheless be challenged by an Internet intermediary as illegitimate. As detailed in the amicus curiae brief submitted by Professor Eugene Volokh, a document that purports to represent a proper removal order might have been fraudulently obtained, secured after only meager attempts at service, or represent a forgery. A removal order also may be overbroad (as Bird claims to be the case here), or otherwise inaccurate or misleading.

Professor Volokh's brief incorporates a request for judicial notice of court filings that assertedly illustrate these concerns. We denied this request for judicial notice by a separate order. Formal notice is unnecessary to recognize the basic point being made — to wit, that plaintiffs' position, if accepted, would open the door to fraud and to sharp litigating tactics. (See People v. Acosta (2002) 29 Cal.4th 105, 119, fn. 5 [124 Cal.Rptr.2d 435, 52 P.3d 624] [denying a request for judicial notice of case files because such notice "is not necessary ... to envision" the general circumstances evinced in the cases].)

[17] Other shortcomings of plaintiffs' approach further expose it as something quite different from what Congress intended. These include the fact that even if it were accepted, plaintiffs' vehicle for avoiding section 230 immunity would offer no remedy for those wronged by authors who write anonymously or using a pseudonym, and whose identities cannot be ascertained through third party discovery in cases filed against Doe defendants. For in those instances, no judgments, default or otherwise, could be obtained against the authors. (See Code Civ. Proc., § 474; Flythe v. Solomon and Straus, LLC (E.D.Pa., June 8, 2011, No. 09-6120) 2011 WL 2314391, p. *1 ["default judgments cannot be entered against unnamed or fictitious parties because they have not been properly served"].)

[18] We also dispute Justice Cuéllar's characterizations of various aspects of this opinion. Yet we see no need to address each of the numerous instances where his dissent misstates our views. It is enough to recall former Justice Werdegar's observation that "[c]haracterization by the ... dissenters of the scope of the majority opinion is, of course, dubious authority." (People v. Caballero (2012) 55 Cal.4th 262, 271 [145 Cal.Rptr.3d 286, 282 P.3d 291] (conc. opn. of Werdegar, J.).)

[19] Justice Cuéllar's dissenting opinion could be construed as allowing an injunction that on its face runs only against a party to be enforced, via a feeble aiding and abetting theory, against a different person or entity that also had been named as a party, but had successfully invoked section 230 immunity prior to the entry of judgment. (See, e.g., dis. opn. of Cuéllar, J., post, at pp. 588-590.) If that were the law, Justice Cuéllar would be correct that the incentive to intervene might be dampened because the invocation of section 230 immunity might have little practical effect in the long run. But it is not the law.

[1] In full, the trial court's order reads:

"Plaintiffs' Request for Injunctive Relief is Granted. Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from Yelp.com and from anywhere else they appear on the internet within 5 business days of the date of the court's order.

"Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website.

"Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names `Birdzeye B.' and `J.D.' attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court's order."

As the plurality opinion explains, we are here concerned only with the validity of the third paragraph of the order insofar as it requires Yelp to remove specified reviews from its website.

[2] Justice Liu disputes the characterization; he argues that the injunction at issue does not forbid Yelp from engaging in independent conduct with respect to the subject matter of this lawsuit. (Dis. opn. of Liu, J., post, at pp. 562-563.) But of course it does: The order requires Yelp to remove Bird's reviews even if, acting entirely independently of Bird, and "solely in pursuit of [its] own interests" (U.S. v. Hall (5th Cir. 1972) 472 F.2d 261, 264), Yelp chooses not to (thus potentially incurring its own defamation liability).

[3] I would note, moreover, that if the trial court had relied on the existence of an agency (or agency-like) relationship as a basis for issuing an injunction directly against Yelp, the company would have been entitled to notice and an opportunity to be heard on that issue. (See Zenith, supra, 395 U.S. at p. 111 [invalidating injunction premised on parent company's status as "alter ego" of the defendant, where parent company had no opportunity to be heard (italics omitted)].) Yelp received neither.

Justice Liu argues that the injunction against Yelp was properly entered based on its "relationship to Bird's tortious conduct," but notes that Yelp "may yet" raise arguments to the contrary in a contempt proceeding. (Dis. opn. of Liu, J., post, at p. 565.) Here, Justice Liu appears to allude to the fact that in California (unlike some other jurisdictions) a person to whom an injunction applies is not barred from collaterally attacking the injunction's validity in a contempt proceeding. (People v. Gonzalez (1996) 12 Cal.4th 804, 818 [50 Cal.Rptr.2d 74, 910 P.2d 1366] (Gonzalez).) This rule does mean that Yelp would have an opportunity to litigate its status as agent or aider and abettor of Bird's noncompliance if the removal order were to stand. But the opportunity to collaterally attack the injunction could not, of course, make up for the court's issuance of an overbroad injunction in the first instance.

[4] As a practical matter, that Bird can independently effectuate the judgment further distinguishes Ross, supra, 19 Cal.3d 899, where the defendant "could comply with the provisions of the ... order requiring the payment of retroactive welfare benefits only through the actions of county welfare departments." (Id. at p. 909, italics added.)

[5] In his dissent, Justice Cuéllar suggests other "evidence and interactions" that perhaps might support a finding that a website operator or other Internet platform acted as an aider and abettor. (Dis. opn. of Cuéllar, J., post, at pp. 589-590.) We have not received full briefing on this question, and I express no view on it. I do, however, caution that even when the common law permits the enforcement of an injunction against a third party aider and abettor, other sources of law, including section 230, may not. (Cf. plur. opn., ante, at p. 543.)

[1] Undesignated references are to section 230.

[2] Although this issue is not before us, and Yelp has not chosen to challenge this finding, the Court of Appeal determined that "Yelp is not aggrieved by the default judgment against Bird" — the judgment that Yelp sought to vacate. (Hassell, supra, 247 Cal.App.4th at p. 1348, rev. granted.) Yelp's decision to initiate judicial proceedings under Code of Civil Procedure section 663, and to incur the costs associated with its motion to vacate the judgment, was self-imposed.

[3] Justice Kruger believes remand is unwarranted to consider whether Yelp aided and abetted Bird's noncompliance with the court's order. (Conc. opn. of Kruger, J., ante, at pp. 555-557 & fn. 5.) Yet it is very much at issue in this case whether Yelp aided, abetted, or acted in concert with or in support of Bird. The trial court in this case made factual findings that Yelp aided, abetted, and acted on behalf of Bird — conclusions supporting its determination that Yelp may be bound by the injunction. The trial court's factual findings were based on Yelp's pre- and postinjunction conduct, including Yelp's relationship with Bird through its terms of service and as described in Bird's updated review, Yelp's legal arguments regarding Bird's claims, and Yelp's maintenance of the defamatory posts on its website. The briefs before us discuss whether the injunction was proper under California law, and whether Yelp acted in concert with Bird. Neither section 230 nor due process law fully resolve, by themselves, whether the injunction was properly issued against Yelp.

[*] Associate Justice of the Court of Appeal, First Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

3.2.4 Baglow v. Smith, 2015 ONSC 1175 [READ EXCERPTS] 3.2.4 Baglow v. Smith, 2015 ONSC 1175 [READ EXCERPTS]

CITATION: Baglow v. Smith, 2015 ONSC 1175

OTTAWA COURT FILE NO.: CV-10-49803

DATE: 2015/02/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:	) )
John Baglow a.k.a. “Dr. Dawg” Plaintiff – and – Roger Smith a.k.a. “Peter O’Donnell”, Connie Fournier and Mark Fournier Defendants	) ) ) ) ) ) ) ) ) ) )	Peter Burnet, for the Plaintiff
	) ) ) ) ) ) ) ) ) ) )	Roger Smith and Connie Fournier, Self-Represented Barbara Kulaszka, for the Defendant, Mark Fournier
– and – The Canadian Civil Liberties Association Intervener	) ) ) ) ) )	Steven G. Frankel, for the Intervenor
	)
	)	HEARD AT OTTAWA: March 24-28, June 3-4, September 15-18, September 22 and 23, 2014.

REASONS FOR JUDGMENT

POLOWIN J.

Overview

[1] Political debate in the Internet blogosphere can be, and, often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar. It is not for the faint of heart. This case is an action in defamation involving political bloggers on the Internet.

[2] The plaintiff, Dr. Baglow, is the owner and operator of an Internet blog site known as “Dawg’s Blawg” on which he posts left-wing opinions and commentary on political and public interest issues, using the pseudonym “Dr. Dawg”. However, while he posts his views under the moniker Dr. Dawg, his true identity as John Baglow is not hidden by him and appears to be well known among political bloggers. He has also published opinion pieces in newspapers and is recognized in the political blogosphere for his left-wing beliefs and frequent criticism of
right-wing views and policies. Particular to this case it is to be noted that he actively opposed Canada’s engagement in the war of Afghanistan and supported the repatriation of Omar Khadr from Guantanamo Bay to Canada on the grounds that he is entitled to be treated as a child soldier and in accordance with the rule of law.

[3] The defendants, Mark and Connie Fournier, are a married couple who moderate a message board on the Internet called “Free Dominion”. They describe Free Dominion as a venue for the expression of “conservative” viewpoints. According to the Fourniers, members of Free Dominion generally believe in fewer powers for government, individual freedom and personal responsibility, lower taxes, support for the family unit and with respect to Canada’s foreign policy, support for Israel, a friendly relationship with the United States, support for the military, support for the war on terror, and support for activities and concepts that advance freedom and liberty globally.

[4] The plaintiff, on the other hand, describes Free Dominion as an extremely right-wing venue expressing radical or extreme conservative views. He often finds the views expressed there as repellant, noting for example Muslim bashing and homophobia. It is his view that the site takes a position on freedom of speech that champions the rights of holocaust deniers,
neo-Nazis, white supremacists and homophobes to spread their hatred unrestrained.

[5] The defendant, Roger Smith, whose pseudonym in the blogosphere is “Peter O’Donnell”, is a conservative or right-wing commentator who comments or posts frequently on Free Dominion and other blogs including Dawg’s Blawg. On August 10, 2010, Mr. Smith, posting under the pseudonym Peter O’Donnell, posted a lengthy comment on Free Dominion which, among other things, referred to the plaintiff as “one of the Taliban’s more vocal supporters”. The plaintiff objected to this comment as being defamatory and requested that the defendant Fourniers remove it from Free Dominion, which they refused to do.

[6] In the course of this litigation Dr. Baglow has freely acknowledged that debates on political blogs can be caustic, strident or even vulgar and insulting at times. However, it is his position that Mr. Smith went too far in labelling him as “one of the Taliban’s more vocal supporters”. It is the position of the defendants, on the other hand, that the words are not defamatory, that they are an expression of opinion only and that if defamatory the defence of fair comment applies. Further, the Fourniers take the position that the impugned words were written, posted and thus published by Mr. Smith. According to the Fourniers they functioned only as the administrators of the forum and should not be considered to have published the impugned words for the purposes of liability for defamation.

[7] This litigation has been hard fought. The defendants brought a motion for summary judgment before Justice Annis, in 2011 (Baglow v. Smith, 2011 ONSC 5131, 107 O.R. (3d) 169). The motion for summary judgment was granted. Justice Annis found that there was no genuine issue for trial as to whether the comments were capable of being considered defamatory. Further, he found that even if there was a genuine issue for trial as to whether the comments were capable of being considered defamatory, the defendants would be entitled to rely on the defence of fair comment. The plaintiff appealed this decision to the Court of Appeal (Baglow v. Smith, 2012 ONCA 407, 110 O.R. (3d) 407) and was successful in that appeal. The following was stated at paragraphs 27 – 29:

27. In this case, the parties have put in play a scenario that, to date, has received little judicial consideration: an allegedly defamatory statement made in the course of a robust and free-wheeling exchange of political views in the Internet blogging world where, the appellant concedes, arguments “can be at times caustic, strident or even vulgar and insulting.” Indeed, some measure of what may seem to be a broad range of tolerance for hyperbolic language in this context may be taken from the apparent willingness of the appellant to absorb the slings and arrows of the “traitor” and “treason” labels without complaint.

28. Nonetheless, although the respondents come close to asserting – but do not quite assert – that “anything goes” in these types of exchanges, is that the case in law? Do different legal considerations apply in determining whether a statement is or is not defamatory in these kinds of situations than apply to the publication of an article in a traditional media outlet? For that matter, do different considerations apply even within publications on the Internet – to a publication on Facebook or in the “Twitterverse”, say, compared to a publication on a blog?

29. These issues have not been addressed in the jurisprudence in any significant way. The responses may have far-reaching implications. They are best crafted on the basis of a full record after a trial – at least until the law evolves and crystallizes to a certain point – in my view. A trial will permit these important conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and quite possibly with the assistance of expert evidence to provide the court – whose members are perhaps not always the most up-to-date in matters involving the blogosphere – with insight into how the Internet blogging world functions and what may or may not be the expectations and sensibilities of those who engage in such discourse in the particular context in which that discourse occurs.

[8] While this case was commenced under the Simplified Procedure provisions of Rule 76 of the Rules of Civil Procedure (the “Rules”) evidence was given over 11 days at trial and there were two days for submissions. The battle between the left and the right in the political blogosphere played out in the courtroom, their ideological differences with respect to the issue of free speech an undercurrent throughout. The parties advised that they view the case as precedent setting and that political bloggers require and are waiting for the guidance of the Court. Further, at my insistence, an expert, Dr. Greg Elmer, was appointed to assist the Court pursuant to Rule 52.03 of the Rules. In addition the Canadian Civil Liberties Association (the “CCLA”) was granted intervener status on consent by Order of Minnema J., dated March 4, 2013.

The Impugned Words

[9] The impugned words were made during the back and forth that arose out of a number of postings written by the plaintiff in August 2010. These posts and the comments that followed will not be set out in detail in these Reasons. Suffice it to say that a chronology of the dialogue deemed more relevant for the purposes of this case is set out below in order to provide the context and tenor of the debate.

[10] On August 7, 2010, conservative blogger Jay Currie speculated on a summer federal election. On August 8, 2010, Dr. Dawg left a comment on the Jay Currie blog stating:

The sooner, the better. Most of us have had our fill of slack-jawed yokel government. The long-form census is the last straw: pre-scientific mediaeval primitives are destroying our country just as illiterate monks once burned priceless ancient manuscripts to bake bad bread. High time that Harper and his nutbar colleagues are sent packing. Can’t wait for the chance to help run him out of town.

[11] On August 8, 2010, Dr. Dawg posted a blog entitled “Off with his head” in which he called for a federal election and referred to supporters of the Conservative government as “yokels with pitchforks”, his apparent moniker for those holding right-of-centre views. Under the title is a photograph of Prime Minister Harper wearing a Crown and a chain around his neck bearing the letters “P.M.”. Other comments include:

Pre-scientific mediaeval primitives are running the government and they are wrecking our home and native land....Killing the long-form census is like excising a portion of the brain in order to induce amnesia....It is nothing less than our civic duty to run this horrific gang of subliterate hoodlums out of office, by any means necessary and as soon as possible, to get the hands moving clockwise again.

[12] Mr. Smith, commenting as Peter O’Donnell picked up the “yokels with pitchforks” theme. On August 9, 2010, on the above noted Jay Currie blog, he stated “Speaking on behalf of slack-jawed yokels (he means Western Canadians, right)”. He then posted comments on the Jay Currie blog on August 9 and 10, in an exchange with Dr. Dawg, in response to Dr. Dawg’s “Off with his head” posting. It is during this exchange that Peter O’Donnell raised the issue of Omar Khadr:

Yokels with pitchforks....sounds like beer and popcorn to me. Where does Omar Khadr fit into your world view? Now I would say psychopath with a rifle there. But I understand he is on the short list for G-G in 2015 once you get rid of us yokels and such.

[13] On August 10, 2010, on Jay Currie’s blog, Peter O’Donnell replied to Dr. Dawg in part:

…It won’t take long for the “yokels with pitchforks” metaphor to jump the shark from being anti-CPC to being anti-Western (which it is probably meant to be anyway, Ontarians always want to run everything in Canada).

[14] To which Dr. Dawg replied:

No need to weep grievance-mongering tears of woe about the Western Alien Nation. We have sufficient yokels right here in Ontario, thanks. They’re the ones who phone up Lowell Green, no slouch in the yokel department himself.

[15] On August 10, 2010, the plaintiff wrote a blog on Dawg’s Blawg entitled “The Gitmo Kanga-ruse” in which he calls the trial of Omar Khadr a judicial lynching. He stated:

And Stephen Harper and his minions, who have been praying for this moment to arrive, will be delighted…Good Luck with that. Parrish (the person presiding at the Khadr trials) is already twisting the hemp in his hands. And our own Prime Minister is part of the mob.

[16] Mr. Smith responded on Dawg’s Blawg on August 10, 2010, using the pseudonym “Jolly Old Saint Knickerless”. The plaintiff testified that he was aware that Jolly Old Saint Knickerless was another pseudonym for Mr. Smith.

I find it odd that people who live in large cities often take the side of terrorists who usually do their business there while people who live in rural areas and small towns, places less likely to be targets of terrorists, usually understand that terrorists have surrendered their civil liberties by taking a blood oath to kill soldiers and civilians alike.

In the moral sphere, you seek complicity with the recent murders of American aid workers under the spurious (if outrageous) charge of spreading Christianity, when you sign up to support Omar Khadr. I think such public declarations of support of Al Qaeda and the Taliban amount to treason, given that we are engaged in a war against them. It’s really only because the war is contained and not likely to be lost on our soil that these normal laws do not apply, or shall I say, are not being applied. But the government of Canada would be quite within its legal rights to arrest the lot of you for treason.

[17] Further on August 10, 2010, Peter O’Donnell wrote the complained of posting on Free Dominion under the heading “Hey yokels with pitchforks, there is no libertarian base”. He stated:

I think Canada’s long-simmering cultural war is about to go viral. I base this on two rather unrelated eruptions of Liberal/progressive angst (“why can’t they see that we are their natural superiors?”) in the past few days. On Monday, Liberal talking head Scott Reid, commenting on Harper’s recent announcements concerning the long-term census, said he was pandering to the libertarian base, but that there is no liberation base. I will return to that rather astounding claim but first, the other salvo in the offensive. Dr. Dawg’s colourfully illustrated op-ed that describes the conservative base (for which nobody has claimed non-existence) amounts to “yokels with pitchforks”. This coming from one of the Taliban’s more vocal supporters. I suppose they are super-yokels with Kalashnikovs.

[18] Later in the same posting, he continued:

Now, as to yokels with pitchforks, just one think about that … we have the pitchforks for a reason, to keep mad dogs at bay. Or Bay and Bloor. We also have virtual control over western Canada where all the money is, so if you elitists down there in Ontari-ari-ario want to retire before you are 87 and avoid a total economic collapse, then it might be smart to stop insulting everyone in western Canada every time you get anxious about having to live in the adult world, and perhaps think less about who we are and more about who you are, as in TRAITORS (collaboration with the enemy being the essential nature of TREASON, and treason being your apparent lack of concern for our national security and the safety of our fighting forces in the field of battle). Or, perhaps you should just ship off to the nearest Al Qaeda training camp like your hero young Khadr did (with his traitor-family’s blessing) and take up arms against the hated Western civilization that you so obviously detest.

The full post is attached as an Appendix to these Reasons.

[19] It is at this point that “Ms. Mew” enters the scene. Ms. Mew is another pseudonym used by Dr. Baglow, a not too subtle play on Dr. Dawg. Ms. Mew posted on Free Dominion on August 11, 2010, republishing the alleged defamatory statement and stated, “Baglow has already won one legal action against a similar libelous claim. This will make two.”

[20] Peter O’Donnell replied:

I don’t see how it’s intellectually consistent to support Omar Khadr and say you’re not supporting the Taliban. In any case, as already stated re Warman, I don’t recognize the moral authority of the Canadian legal system to interfere in political discussion and I will not pay any libel charges sustained in the now morally bankrupt Ontario court system. I will argue the cases but I would choose other responses than compliance if the verdicts sustain the Orwellian notion that Ontario judges have final say in matters of conscience and deep conviction, because I find this to be entirely opposite to the spirit of the constitution, and in any case, our country needs to be defended at this point in time against internal traitors and communist agitators. We don’t want to make the mistake the Russians and the Chinese made in underestimating the power of socialist agitation to destroy freedom.

I consider it to be very bad form for bloggers to sue other bloggers (or Internet posters) when they sense they are losing an argument. We expect that sort of thing from serial litigators who are not even courageous enough to blog under their own identities, but it breaks the unwritten code of honour when established bloggers do this. The Internet culture of political blogs has always been very free flowing, and this encourages the maximum exposure of the issues. Maximum disruption is something that autocrats and tyrants like to engage in, not civil libertarians, and Dawg styles himself as a liberal civil libertarian.

I would also point out that the one shred of respect I do have for Dawg (whose sock-puppet informs us is Baglow) is that he will debate issues on third-party blogs and not just hide in his own clubhouse the way many liberals do. For example, he made the yokels with pitchforks argument on his own blog, but came over to Jay Currie’s blog, where conservative-libertarian thought prevails generally, to argue his points (and take a mighty drubbing for his troubles). I think we need more of that in Canada, liberals in general have a code of silence where certain issues cannot be mentioned in public, and this is what I was getting at above about Scott Reid’s assertion, it seemed to be one of those pronouncement that if we say something is so, then it is so.

[21] To which Ms. Mew responded:

Omar Khadr hasn’t been convicted of anything. Supporting due process and the presumption of innocence are apparently the same thing as being a Taliban supporter. I hope Baglow sues your ass, quite frankly. You are utterly out of bounds on this.

[22] Peter O’Donnell then stated:

I assume it’s the groupthink voice (a.k.a thought police) that posted previously as noonespecial or whatever. They are always on the lookout for any public expressions of Banned Thoughts that are not to be heard on the CBC or printed in the Grope and Flail.
I simply don’t care any more about the hurt feelings of Ontario progressives, you have issues, we have tissues.

The false angst about Omar Khadr is disgusting to many Canadians who remember what happened to dozens of our fellow citizens on 9-11 among the large international death toll, and what could easily have happened to any of us if we had been travelling in Bali, London or Madrid. Or Mumbai on business for that matter.

People like the Khadrs relished those scenes and have chosen the path of terrorism, which is a cowardly and profoundly anti-democratic activity -- even the Nazi’s had a state and wore uniforms. This new crop of fascists (and that’s who you’re supporting, my proggy friends, a bunch of Islamo-fascists) don’t have the courage to wear real uniforms, or fight under any recognized code of military engagement for their demented goals. They choose entirely innocent groups of civilians as their targets.

If that’s who you want to associate with, then don’t come lecturing me about not being a Canadian, it’s not me that’s blowing up Canadian soldiers on patrol in Afghanistan. And let us know who you really are if you’re such an exemplary citizen, we should have the chance to admire you in all your Torstar glory.

[23] Ms. Mew then “outed” Mr. Smith by stating, “Why don’t you do the same, Roger Smith?”

[24] On August 11, 2010, the plaintiff sent an email to the Fourniers stating that he had been libelled as “one of the Taliban’s most vocal supporters”. He demanded that the post be taken down immediately and a formal written apology offered. He stated that if they did not, he would press the matter further, warning that he had already done so successfully in the past.

[25] The plaintiff’s argument with Mr. Smith continued on Dawg’s Blawg. On August 13, 2010, Dr. Dawg wrote, “They dare call it treason” with respect to his view on Omar Khadr, in which, among other things, he accused Mr. Smith of McCarthyism. This generated several responses from Mr. Smith, similar to the above, concerning the effect of the terrorist activities of the Khadrs and their kind and equating support for Mr. Khadr with support for the Taliban and “the enemies of our country”. In the thread of this posting there is also some discussion of a potential defamation action with Dr. Dawg stating:

Defamation is defamation. Are you implying that I should just let it go? Publicly calling me a ‘vocal supporter of the Taliban?’ In the case of Connie and Mark who continue to publish this libel, we can prove malice to the hilt, and it gets easier with every sick post they have subsequently made.

[26] Peter O’Donnell later responded:

But go ahead and waste your time sueing me. I have nothing you would be interested in having. I’m sure the Bible and the Gulag Archipelago would be useless to you. Beyond that, your earlier actions already ruined my material existence so your just going to end up paying your lawyer thousands of dollars for no apparent reason. Warman’s ahead of you in the que anyway, he couldn’t take criticism any better than you can.

The Evidence at Trial with Respect to Defamation

Dr. Baglow

[27] Dr. Baglow has a Ph.D in Modern Literature, was a former public servant and an executive vice-president of the Public Service Alliance of Canada. He is presently a consultant in the fields of social and public policy, public sector issues and labour relations. Dr. Baglow owns Dawg’s Blawg, which he started in 2005. He explained that while he has control of the content on his blog, he chooses not to premoderate the comments posted on it. But he can moderate, after the fact and has taken comments down on occasion. There are two or three other individuals who blog on his site. He stated that his site has about 1,000 unique hits a day from visitors to it.

[28] Dr. Baglow explained that he is fairly political, started reading blogs and thought there was room for good left-wing commentary on Canadian politics and culture. He started Dawg’s Blawg to advance a left-wing perspective. He chose the name Dr. Dawg as a nom de plume, as he likes dogs and did not want to take himself too seriously. However, he did not choose the name to hide and had no expectation that he would remain anonymous.

[29] Dr. Baglow stated that Dawg’s Blawg is an open blog. However, he will not permit racist, anti-Semitic or abusive comments. He will not permit trolling or hate speech. Her explained that a “troll” is a person on the Internet who comes to a site in to pick a fight and is not interested in discussion. Dr. Baglow has the ability to ban commenters and has banned about 30 people, although some try to come back as “sock puppets”. He stated that he welcomes people who are not from the “left” as he wants to host decent discussions and is looking for divergent opinions and debate. He stated that “mine is not an echo chamber”. Dr. Baglow explained that he likes comments from people he profoundly disagrees with but who can mount a good debate. He stated that Mr. Smith had commented on his site infrequently, Ms. Fournier only once and that Mr. Fournier never did. He stated that he has posted on blogs that do not share his political views such as Jay Currie and Damnation. Dr. Baglow testified that on two occasions he has been accused of making defamatory comments on Dawg’s Blawg. He retracted the comments and apologized.

[30] Dr. Baglow explained that he never made any attempt to hide his true identity and that it is well known in the political blogosphere that he is Dr. Dawg. He noted that he has written two dozen articles in the National Post from the left-wing perspective where it is stated “John Baglow who blogs as Dr. Dawg”. He also noted that his name has been linked on many occasions to Dr. Dawg in Free Dominion since 2006. (See for example Tab 19, Exhibit 1, Free Dominion post March 11, 2009 by Ms. Fournier, “John Baglow Dr. Dawg laments Obama’s support for Israel”). Further, he has posted on Rabble (a left-wing version of Free Dominion) where he has indicated that he is Dr. Dawg. In addition, in 2006, Small Dead Animals, a
right-wing blog with a “huge” readership, referred to him as “Dr. Dawg – John Baglow”.

[31] Dr. Baglow testified that he views Free Dominion as a radical, extreme conservative site. He sometimes finds it repellant and does not like the tone of it, or the opinions expressed. It is his view that the site takes a position on freedom of speech that champions the rights of holocaust deniers, neo-Nazis, white supremacists and homophobes, to spread their hatred unrestrained. He noted that he strongly supported the section 13 complaint process under the Canadian Human Rights Act and noted that this has been a hot button issue in the blogosphere. (As an aside, I note that throughout the trial there was reference to a number of section 13 cases involving hate speech and the debate between the “free speechers” or “speech warriors” and those who believe in reasonable limits on free speech – a debate in which these parties actively engaged on the Internet). Dr. Baglow testified that he met Ms. Fournier at a Human Rights Tribunal hearing involving Marc Lemire, the last leader of Heritage Front and a neo-Nazi.

[32] Dr. Baglow was referred to a blog that he wrote on Dawg’s Blawg entitled “Freedom of Speech” dated September 10, 2009. (Tab 14, Exhibit 1). It referred to an angry email he received from Ms. Fournier who complained about a comment he made on Jay Currie’s blog where he suggested that if anyone wanted to come up with evidence that Nazis exist in Canada they should go through Connie Fournier of Free Dominion as she had worked closely with Marc Lemire, the former head of the Heritage Front. Dr. Baglow explained that he was not suggesting that Ms. Fournier was a Nazi, but simply stated that during the Warman and Lemire section 13 Human Rights Tribunal litigation, the Fourniers provided Lemire with computer expertise.

[33] Dr. Baglow was also referred to Tab 26, Exhibit 1, a posting that he made on Dawg’s Blawg on March 14, 2010, entitled, “Suck it Up”. He explained that he was profoundly offended by a posting on Free Dominion by Ms. Fournier which he found racist. He went “over the top” and called her a stupid name “Free Dominatrix”. He stated that it is not his practice to call people names, but sometimes he could not help being “uncivil to the uncivil”. He noted that there has been hostility between himself and the Fourniers based on their conflicting views and sometimes it “gets personal”. Dr. Baglow also included in the posting a picture of the Fourniers receiving the George Orwell Free Speech Award in 2009, with the notation that past previous honourees included holocaust deniers Ernst Zundel, Malcolm Ross, David Irving and James Keegstra. Dr. Baglow testified that he has posted this picture about half a dozen times.

[34] Dr. Baglow was asked to explain why he did not view the comments of Mr. Smith posted in “They dare call it treason” with respect to him and others, calling them “traitors” and “guilty of treason”, as defamation. He explained that he did not think that Mr. Smith’s incoherent language would be viewed seriously. He was asked to explain the difference between being called “a vocal supporter of the Taliban” in “Hey yokels with pitchforks, there is no libertarian base” and being a “traitor” or being “guilty of treason” in “They dare call it treason”. He explained that Mr. Smith’s commentary to stand up for the human rights of Khadr is to stand up for the Taliban and Al Qaeda, is illogical and incoherent. It would be equivalent to saying that treating German POW’s under the Geneva Convention was pro-Nazi.

[35] In contrast, the post “Hey yokels with pitchforks, there is no libertarian base”, where the impugned words are found, was long and rambling and not about him. The only reference to Dr. Dawg was a “a vocal supporter of the Taliban”. No context was provided for this statement.

[36] Dr. Baglow testified he wasn’t worried about Mr. Smith’s illogical rants in “They dare to call it treason”. It was windy stuff. But he was worried about the impugned words in “Hey yokels with pitchforks”. He was being called “a vocal supporter of the Taliban” at a time when Canada was at war with Afghanistan. Anyone could have googled Dr. Dawg and immediately determined it was him. It could affect his personal and professional reputation. He stated that there were tough times after 9-11.

[37] Dr. Baglow was referred to a number of posts which I do not intend to detail. Suffice it to say that they indicate the ideological battle going on between the parties over time on various issues, including the issue of free speech. These posts include:

a) Dawg’s Blawg “Another Slobbering Threat” December 30, 2010, Tab 31, Exhibit 1

b) Dawg’s Blawg “More Speech Warriors Unmasked” November 13, 2011, Tab 40, Exhibit 1

c) Dawg’s Blawg “That ‘ol Nazi Label” April 5, 2012, Tab 42, Exhibit 1

d) Free Dominion “The Dean Steacy Lawsuit Question” July 12, 2009, Tab 12, Exhibit 1 (where Ms. Fournier called him “the biggest idiot I have ever seen…a dinky little brain”)

e) Free Dominion “Well, OK then, who is a neo-Nazi”, October 14, 2009, Tab 17, Exhibit 1

f) Free Dominion “Galloway hoping to testify in Federal Court over entry ban” February 11, 2009, Tab 18, Exhibit 1

g) Free Dominion “John Baglow Dr. Dawg Laments Obama’s support for Israel” November 3, 2009, Tab 19, Exhibit 1 (where Mr. Fournier calls Dr. Baglow an “anti-Semitic asshole” and an “anti-Semitic bigot”)

h) Free Dominion “John Baglow and Michael Murphy, that’s holocaust denial!!” November 7, 2009, Tab 20, Exhibit 1

i) Free Dominion “Warman, Kinsella, Dr. Dawg feel Ezra’s beserker rage!” February 13, 2010, Tab 23, Exhibit 1

j) Free Dominion “Dr. John Baglow “Dawg” celebrates Israel Apartheid Week” March 1, 2010, Tab 25 Exhibit 1 (where Ms. Fournier refers to Dr. Baglow as a “moron”, expressing “odious and bigoted views”).

[38] Dr. Baglow testified that he has never supported the Taliban. He views them as an odious, political, jihadist extremist group, a murderous bunch of theocrats, practicing an extreme form of brutality. He referred to blogs that he wrote critical of the Taliban (Tabs 1 and 2, Exhibit 1). However, he also testified that he was not a supporter of Canada’s mission in Afghanistan (Tabs 4, 5, 6, 7 and 8, Exhibit 1). He also explained his view on Omar Khadr. It is his view that Omar Khadr is a Canadian citizen and a child soldier. He should be repatriated to Canada and treated in accordance with International Law and the United Nations Rights of the Child Optional Protocol. Child soldiers should be rehabilitated and reintegrated (Tabs 13 and 28, Exhibit 1).

[39] Dr. Baglow testified that the language on Internet blogs can be caustic and polemical. One can expect strength of language and rudeness, but it should not enable false accusations about people. It his view that the political blogosphere allows for rough and tumble debate but should not allow falsehoods that are damaging to people.

[40] Dr. Baglow disputed the defendants’ contention that the impugned words grew out of an ongoing debate over three blogs. He stated that there was a discussion with Mr. Smith on Jay Currie’s blog. Then Mr. Smith came over to Dawg’s Blog where they had an exchange. The post at Free Dominion with the impugned words was made at about the same time. Someone alerted Dr. Baglow to it, otherwise he might not have known about it. Dr. Baglow stated that Mr. Smith’s post on Free Dominion was not a part of a conversation. It mentioned him in passing. There was no conversation on Free Dominion when the post was made, nor had he previously discussed Khadr or Afghanistan on Free Dominion with Mr. Smith or anyone else.

[41] When Dr. Baglow saw the post on Free Dominion he reacted with anger. He was horrified and upset. In the heat of anger he posted comments as Ms. Mew. He said he used Ms. Mew to startle. It was a riff on Dr. Dawg. It was Internet snark. He was trying to send a clear message that the line had been crossed. But in retrospect, he was not himself and should have stuck just to emailing the Fourniers. He sent an email to Ms. Fournier about one hour after his first Ms. Mew post.

[42] Dr. Baglow was referred to a number of posts on Free Dominion, written by the Fourniers and Wilderness Voice, after August 10, 2010, about the issues in this case and the litigation. I do not intend to detail these posts. Suffice it to say that they indicate that the litigation itself has been the subjection of discussion on the political blogosphere. These posts include:

a) Free Dominion “FD gets libel notice, but something has that wet-Dawg smell” August 12, 2010, Tab 31, Exhibit 1 (Ms. Fournier)

b) Free Dominion “John Baglow puts on his frilliest Internet dress for FD” August 12, 2010, Tab 33, Exhibit 1 (Mr. Fournier)

c) Free Dominion “SLAPPing the crap out of the conservative blogosphere” November 13, 2011, Tab 39, Exhibit 1 (Ms. Fournier)

d) Free Dominion “That ‘ol Nazi Label” (referred to above)

e) Free Dominion “John Baglow – Civil or Criminal Action Next” July 8, 2012, Tab 45, Exhibit 1

f) Free Dominion “Who is or Wants to be Dr. Dawg or John Baglow” July 9, 2012, Tab 46, Exhibit 1

g) Free Dominion “Re: Warman v. Fournier and DOES – Day One” September 26, 2013, Tab 49, Exhibit 1

[43] With respect to damages, Dr. Baglow testified that he was upset and angry but now is just angry. He is very concerned that people who did not know him would make judgments against him. He also has professional concerns. He has worked for the Federal Government in the past and is worried he would not get further work from them. However he could not identify any financial loss.

[44] In cross-examination, Dr. Baglow agreed that he has written a lot about Omar Khadr and Afghanistan. He agreed it was a matter of great public interest. He testified that blogs respond generally to what has been reported in mainstream media. His posts are usually op-ed like and this is common with bloggers. He researches on occasion. He stated that he set up his blog as a counterpart to the right-wing. However he likes to host exchanges with both like-minded and not like-minded people. Dr. Baglow agreed that controversy brings readers. He stated that people interested in his blog would be interested in a progressive left-wing take on politics and culture.

[45] Dr. Baglow agreed that a reader of blogs does not expect in-depth reporting. Frequently readers challenge his version of the facts. He stated that he expects readers to challenge him. He agreed that part of the joy of blogging is challenging others. He agreed that for him a blog is a social experience and a gathering place for exchanging ideas where regulars often comment. He stated that people on the right and left would go on to the Jay Currie blog to battle.

[46] Dr. Baglow testified that in his view Ms. Fournier is a “speech warrior”, that is, someone who believes in unrestrained free speech. He was directed to his comment on Jay Currie’s blog “Hadjis v. Hadjis”, September 8, 2009, that anyone wanting to find Nazis should try going through Connie Fournier. He stated that he was not saying or implying that she was a Nazi but simply that she knew Marc Lemire, the former head of the Heritage Front. Ms. Fournier responded to his comment by referring to him as a “hypocritical turd sandwich”.

[47] Dr. Baglow was asked about “SLAPP” suits. They are strategic lawsuits against public participation. (A lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism). He stated that he does not believe in SLAPPs being used to shut people up but that he is tired of defamatory statements being made by people on the right. He was referred to his post on Dawg’s Blawg “On Namecalling” September 18, 2009, where he talked about the rough and tumble of the blogosphere. He agreed that in this medium it is easy to read something, get emotional, write and hit send. He testified that he has gotten used to the culture of name-calling in the blogosphere and that unfortunately he did it himself.

[48] Dr. Baglow was referred to his post on Dawg’s Blawg “Enabling Bigotry” where he criticized the CCLA for intervening in the “Boisson” case (Reverend Boisson expresses anti-gay views). He agreed he was very upset. He viewed the CCLA as enabling hate. He explained that he does not believe in the right of people to use unrestrained hate speech. He stated that the CCLA does and they have come to the aid of odious people. He strongly disagrees with unrestricted speech that attacks members of our society. Dr. Baglow agreed that this post and the many comments it generated was a good example of what goes on in the blogosphere. Some commenters got angry with him and he defended himself. He received 135 comments on his post. This was the most he had ever received.

[49] Dr. Baglow was directed to his tweets and post relating to Fern Hill’s (a blogger as well) comment that people should support both sides financially in this litigation. He admonished Fern Hill to “pick a side”. He stated that his case against Free Dominion has not been easy. He felt the “progressives” should support him. He stated that he was not defamed by a neutral party but by a site antithetical to him. He sees this case in the political context. He is strongly situated on the left. They are strongly situated on the right. The defamation did not arise out of thin air.

[50] Dr. Baglow was referred to his post “Off with his head”. When asked whether he was trying to be provocative he stated that he did try to be provocative. That is what political polemic is.

[51] Dr. Baglow was directed to Mr. Smith’s post “Hey yokels with pitchforks, there is no libertarian base”. It was his view that the impugned words mean that he is in Canada, giving explicit vocal support to the enemies with whom Canada is engaged in war. Giving aid and comfort to the enemy. It was his view that most people don’t bother reading threads. He did agree that Ms. Mew’s comment at 1:56 p.m. on August 11, 2010, reflected his view that support for Khadr is not support for the Taliban. Dr. Baglow stated further that if someone called him a pedophile he wouldn’t argue back and forth. He does not care about what is said in a thread. People don’t read threads. Mr. Smith made an unvarnished statement. Dr. Baglow stated that he made a couple of comments in the heat of anger as Ms. Mew, not really trying to disguise himself. According to Dr. Baglow, Mr. Smith’s statement did not get erased by a little back and forth on what Dr. Baglow’s position really is. Dr. Baglow did not agree that republishing the impugned words (as Ms. Mew) and including his real name was amplifying his damages.

[52] Dr. Baglow agreed that he and the Fourniers are ideological enemies. He agreed that he referred to the Fourniers as “numpties”. He said that antagonism between them had grown over the years. He stated that the Fourniers wrote posts that were very antagonistic with respect to him in 2009. He stated that they disagreed strongly with the use of section 13 of the Canadian Human Rights Act. He stated that his objection to the defendants is on the basis of their ideas and actions. He agreed that he has shown scorn and contempt for their positions.

[53] Dr. Baglow was asked by Ms. Fournier why he only sent the email asking for the impugned words be taken down to her. He stated that he thought she would advise her husband and he did not have Mr. Smith’s email address. He was not aware that Mr. Smith was a moderator on Free Dominion and could have deleted his own posts. He explained again why he did not sue Mr. Smith for calling him a traitor. A context had been set out with respect to those comments, which when read showed that Mr. Smith made a fool of himself.

[54] Through Mr. Frankel, counsel for the CCLA, Dr. Baglow explained the difference between a message board and a blog. Free Dominion is more like a message board (I note that the terms “message board” and “forum” were used interchangeably in evidence). When a forum is navigated, one will find a list of subforums. Within subforums there will be a list of conversations (a post followed by comments). In a forum, once a post is made, it will appear at the top of a list. If people don’t comment it goes down the list and may even disappear. To get to “Hey yokels with pitchforks, there is no libertarian base” on Free Dominion one has to navigate through a series of headings to get to “Opinions are Like Clymers”.

[55] Dr. Baglow agreed that commenters on blogs espouse their views and that Dawg’s Blawg is an outlet for his views on social, political and cultural matters. He agreed that he enjoyed the cut and thrust of debate. It is a rough and tumble medium, where language is rude, strong, confrontational and hyperbolic. There is name-calling and the level of sarcasm is extremely high. He also agreed that there are blogs that are more academic and more civil, where you don’t expect the same type of language as found on Small Dead Animals or Free Dominion.

[56] Dr. Baglow referred to “Godwin’s Law”. It is an Internet adage or axiom that “the longer an online discussion grows, the probability of a comparison or mention of Hitler and the Nazis approaches one”. Further, he stated that it is generally accepted that the first person who uses a reference to the word “Nazi” or “Nazism” loses the debate.

[57] Dr. Baglow agreed that because of the level of discourse in the political blogosphere, he did not always take everything at face value. He said it had to do with tone, rhetoric and hyperbole. He was referred to a blog where someone called him a “Shill for Hezbollah”. He did not take that seriously, but said it was a very silly thing to say within the context. However, if there was an article somewhere where he was simply referred to as a “Shill for Hezbollah”, without any colouration or surrounding commentary, he would have taken a very different view of it. Dr. Baglow stated that context is very important. For example, he said that the views of Kathy Shiadle (Five Feet of Fury) are so extreme, ordinary people would not afford her much credibility. However, if she were to make an accusation against him that he was a rapist, a pedophile or a supporter of the Taliban, that would be very different.

[58] Dr. Baglow was directed to the writings he has done for the National Post, “The Full Comment”. He stated that they are generally lifted from his blog and rewritten, to make them more “op-ed” like. He would not use language such as “yokels with pitchforks” in those writings. The language is somewhat more measured. Mr. Frankel then took Dr. Baglow through a comparison of what he wrote on Dawg’s Blawg, “The elevation of Vic Toews”, March 8, 2014. In this blog he stated Mr. Toews “distinguished himself…an ill-conceived liking for torture”. Dr. Baglow testified that this was a little overstated but that he had blogged about this before, that is, that Mr. Toews wanted to make the fruits of torture admissible as evidence. He hoped or imagined that his readers would know the context which was really common knowledge. But if he had received a letter from Vic Toews’ solicitor saying this was going too far, he would have taken it down.

[59] Dr. Baglow was referred to the impugned words. He confirmed that he did not think the words meant that he participated in active hostilities against the Canadian Forces in Afghanistan but that he gave aid, comfort and encouragement to the Taliban, a people with whom Canada was involved in active hostilities. He was then directed to Mr. Smith’s previous comment on his blog the tenor of which was, support for repatriating Omar Khadr to Canada amounts to treason and Dr. Baglow’s evidence that these comments were woolly, incoherent and silly. Dr. Baglow was asked whether Mr. Smith’s opinion, is one that a Canadian is capable of honestly holding. Dr. Baglow responded that he did not know.

Roger Smith

[60] Mr. Smith has a B.A. in geography and statistics. He was educated as a climate scientist and has done weather forecasting and research, although presently he works at various part-time jobs. He became interested in political blogs and joined Free Dominion in 2005. He has participated in a number of blogs and forums although Free Dominion is his home base as an Internet political enthusiast. He stated that on Free Dominion there are about three dozen subforums. He has started subforums on classical music, weather forecasting and weather events. Mr. Smith is a moderator on Free Dominion. He has the ability to edit, remove or change anything on the forum. Eighty percent of what he posts on Free Dominion concerns politics and religion. Mr. Smith stated that he leans towards libertarian conservative. He described Free Dominion, “The voice of principled conservatism” as a big tent for conservatives.

[61] According to Mr. Smith, most of the members of Free Dominion today are civil libertarians. Civil libertarians believe in the expansion of individual liberties, unlimited freedom of speech and association and small government. But Free Dominion is a good meeting place for social conservatives who are mostly religious people, fiscal conservatives, civil libertarians, law and order conservatives and progressive conservatives or “red tories”. There has been a lot of discussion on Free Dominion on the same sex marriage issue, politics in the Middle East and the section 13 human rights debate which has evolved into a discussion of Internet freedom of speech.

[62] Mr. Smith stated that the case turns on conversations that took place on the conservative blogosphere and the plaintiff’s blog. It started on Jay Currie’s site in “Mid Summer-Election Speculation” on August 8, 2010, where Dr. Dawg referred to Harper and his “nutbar” colleagues, “slack-jawed yokels” and made “prescientific comments”. This opened the left-right debate. Peter O’Donnell then spoke on behalf of slack-jawed yokels, at page 2 of the thread on August 9, 2010. On August 8, 2010, Dr. Dawg wrote “Off with his head” on Dawg’s Blawg. Mr. Smith pointed to the cross-pollination between Dawg’s Blawg and Jay Currie’s site. The comments indicate that quite a few people read both. According to Mr. Smith, the discussion built-up on Jay Currie’s blog. Dr. Dawg had his say there insulting conservatives and he got it back in same form from John Begley. At 11:33 a.m. on August 9, 2010, on Jay Currie’s blog, Mr. Smith (a.k.a. Peter O’Donnell) started to talk about the two themes he was going to talk about on Free Dominion. “Yokels with pitchforks…sounds like beer and popcorn to me” and Omar Khadr. According to Mr. Smith “beer and popcorn” is a generic reference to inopportune political comments.

[63] Mr. Smith then referred to Dawg’s Blawg and “the Gitmo Kanga Ruse”. Mr. Smith stated that Dr. Dawg has identified himself as someone in the forefront of the movement of progressives to bring Khadr back to Canada to be protected by Canadian justice. From Mr. Smith’s perspective the legal situation with respect to this issue is complicated. Mr. Smith replied to this post on Dawg’s Blawg as “Jolly Old Saint Knickerless” on August 10, 2010, at 6:48 p.m. In his view he was expressing a widespread conservative viewpoint that if you join a terrorist group you will not be treated like soldiers covered by rules of engagement. The comment indicated that support for Khadr equated to support for Al Qaeda and the Taliban and amounted to treason.

[64] Mr. Smith then posted “Hey yokels with pitchforks, there is no libertarian base” on Free Dominion on August 10, 2010, as Peter O’Donnell. He stated that he was speaking ironically to the readers of Free Dominion. He found it strange that a seasoned liberal (Dr. Dawg) could say there was no libertarian base and he responded to that. He made reference to the BC Human Rights Tribunal Case involving Mark Steyn and Maclean’s magazine (concerning the free speech issue). His post also referred to the East-West cultural divide in Canada. It then went on at page 2, paragraph 3 to talk about “TRAITORS” and “TREASON”. Mr. Smith stated that what he was trying to say was that in conservative circles there is not a lot of sympathy for Khadr. If you are on his side, you are on the side of his family who are not loyal citizens of Canada. In Mr. Smith’s view terrorists should be charged with a crime. His post then went on to talk about the ongoing culture war in Canada. In Mr. Smith’s view there is a political correctness ideology that is becoming a religion.

[65] Ms. Mew then commented after Mr. Smith’s post. Mr. Smith replied first that it is not intellectually consistent to support Omar Khadr and say you are not supporting the Taliban. He then went on to give his view on “lawfare”. He considers it very bad form for bloggers to sue each other.

[66] Mr. Smith testified that what he posted is his honest and sincere opinion. He does believe that Omar Khadr and his family have shown a treasonous view towards Canada. Khadr was no longer acting as a Canadian when he went over to Afghanistan. While he has never thought that the Taliban reflects the views of the left, what he was saying was that if you give aid and comfort to a member of a terrorist organization, you are giving some support to that organization. This is his honest opinion.

[67] Mr. Smith testified that initially he did not known who Ms. Mew was. Ms. Mew had only posted five times previously on Free Dominion, but by 1:36 p.m. he was aware that Ms. Mew was Dr. Baglow’s sock puppet. He stated that much of the thread is a discussion of why Ms. Mew came on the site. At 2:43 p.m. Mr. Smith commented again about his view with respect to Omar Khadr. At 3:38 p.m. Ms. Mew specifically referred to him as “Roger Smith”. Mr. Smith testified that only seven members of Free Dominion commented on the “Hey yokels with pitchforks” thread.

[68] Mr. Smith described the “maximum disruption” philosophy, a philosophy that has people in court as much as possible, so they cannot do their work. He saw this lawsuit as frivolous and vexatious. He stated that this case is a proxy for the culture war which will never go away. He noted that what goes on the Internet often gets personal but that he tries to stay away from that. He found it ironic that he is a defendant in this case. There are other people who are much more hostile than he is.

[69] Mr. Smith testified that Dr. Baglow never sent him an email asking him to remove the impugned words. Dr. Baglow’s counsel sent him a notice of libel 45 days later. He did not remove the impugned words because it was a statement of his honest opinion and that would violate the code of bloggers. Bloggers want to dialogue about complex issues. If you say something that someone disagrees with, legal action is not the way to go.

[70] In cross-examination Mr. Smith was directed to “Mid Summer-Election Speculation” where there was no mention of Khadr or Afghanistan until his comment at 11:33 a.m., “Where does Omar Khadr fit in your world view”. He stated that the context of his comment was the “Yokels with pitchforks” theme. This was an example. Mr. Smith agreed that as a moderator at Free Dominion he can delete or edit comments. On routine matters such as spam or spelling he would not communicate with the Fourniers but on bigger issues he would. Initially, he thought Ms. Mew was a friend of Dr. Dawg.

[71] Mr. Smith agreed that his response to Ms. Mew in the “Hey yokels with pitchforks” thread, that Canada needs to be defended against “internal traitors and communist agitators” referred to Dr. Baglow. Mr. Smith would not agree that he knew at that time that Ms. Mew was Dr. Baglow. He stated that he assumed they were part of a group disrupting Free Dominion. Mr. Smith was referred to his comment in “Hey yokels with pitchforks” about an “unwritten code of honour” that bloggers do not sue each other. He testified that he was stating his personal opinion and that almost everyone he has talked to who posts on political forums thinks that lawsuits are wrong and that they will chill discussion. It is his view that people are against “lawfare”. Mr. Smith stated that he believes that Dr. Baglow targeted Free Dominion to inconvenience them and that he is collateral damage.

[72] Mr. Smith was asked why he went over to Dawg’s Blawg to comment on “They dare call it treason”. He said that the main reason was that Dr. Baglow mentioned him by name in the originating post. Mr. Smith saw that as hostile. He made some 20 comments on this post. This long thread was his last attempt to communicate on these issues.

Connie Fournier

[73] Ms. Fournier was trained as a radiographer in the 1980s, then stayed home to raise her children and went back to school in 2007 and became a computer programmer analyst. Prior to going back to school she taught herself how to get around the Internet and create websites. She became interested in politics and how people were using new media to participate in the political process. She and her husband Mark are the moderators and administrators of Free Dominion. It is a message board, a politically conservative venue, which was accessible free of charge to any member of the public. Free Dominion started in January 2001 but was closed to the public after an injunction was granted by Justice Robert Smith in February 2014 in the case of Warman v. Fournier, (2014 ONSC 412, 2014 CarswellOnt 857) because it was unclear from his order whether they would be held responsible for an anonymous poster who wrote something.

[74] Members were entitled to post their own opinions directly to the board once they opened an account. Almost all used pseudonyms. Ms. Fournier testified that at the time relevant to this case, Free Dominion was a well-established, high-traffic message board with nearly two million posts and over 3,000 daily visitors. Members discussed political issues from a conservative point of view. She stated that occasionally people got angry but it’s not unexpected that people discussing politics would get passionate about it. When fights broke out (“flame wars”) she and Mr. Fournier generally took a hands-off approach and allowed posters to work out their differences for themselves.

[75] Ms. Fournier testified that an article’s title would initially be seen on the Active Topics page. Ms. Fournier stated that it was her experience that an article had a very short time span to catch a reader’s attention after it was opened. A reader might make a comment often agreeing or disagreeing. Every time a comment was made to a thread, the post would move back to the top of the Active Topics page. If no comments were made for a while, the post would move down the page, until it moved off. In her experience as moderator, as more comments were made to a Free Dominion post, more people would click on it to see what others were saying and the initial post became less important as the conversation evolved. There could also be “thread drift”, where the initial post was no longer relevant.

[76] Ms. Fournier described Free Dominion as a mainstream political message board. She stated that she is not a white supremacist, nor does she hold racist, homophobic or neo-Nazi views. She noted that Free Dominion has a language filter that blocks distasteful words such as the n-word with asterisk. She stated that they tried to strike a balance between a forum with open discussion and a family friendly atmosphere. As moderators, she and Mr. Fournier had the ability to delete posts from the message board but did so rarely. The ethos of Free Dominion and its members was that open discussion is better than deletion and deletion is only to be a measure of last resort for things such as pornography or trolls.

[77] Ms. Fournier testified that Dr. Baglow is a progressive, left-wing commentator and very antagonistic to the conservative viewpoints held by the members of Free Dominion. She stated that he has regularly expressed his derision, scorn and contempt for her and other members of the political blogosphere. He has called her the “Free Dominatrix”, a “numpty” or Mark’s “equally thick wife”. Ms. Fournier stated that while the plaintiff’s real name is known to people who participate extensively in the political blog scene, she did not believe from her experience it would be known by a casual reader without some googling. Until this case started she had met John Baglow only once at a Canadian Human Rights Tribunal hearing. He was introduced to her as Dr. Dawg.

[78] Ms. Fournier testified that when she had to make the judgment call as to whether the impugned words were defamatory, she considered Dr. Dawg’s own posts about others as an indication of what he considered to be defamatory in his critical comments of others. Ms. Fournier pointed to Dr. Dawg’s comment in the post “Hadjis v. Hadjis” on Jay Currie’s site, that if anyone wants to find Nazis they should try going through Connie Fournier as she worked with the former head of the Heritage Front. When Ms. Fournier complained to him about this he responded by posting her private email on his blog and according to Ms. Fournier, ridiculed her. It is Ms. Fournier’s view that Dr. Baglow was attempting to smear her simply because she was opposed to section 13 of the Canadian Human Rights Act. Ms. Fournier did not sue Dr. Baglow even though he invited her to and instead wrote a post in her own defence on Jay Currie’s site.

[79] Ms. Fournier stated that on Free Dominion they had a policy not to interfere in arguments between pseudonymous posters by deleting posts or banning people. They considered a pseudonym to be similar to protective gear that posters wear in the online battle of words. The real person was protected from reputational damage from slings and arrows, by the pseudonym he or she used in the forum. In her experience people who used pseudonyms were more likely to attack harder or respond in a less inhibited manner. If negative comments were made about someone using their real name, the Fourniers still tried to encourage posters to resolve their differences, but they investigated the situation more closely and deleted the comment or banned the poster if they felt it was necessary.

[80] Ms. Fournier stated that unless a thread was very active with many people posting, it rarely stayed in the Active Topic pages for more than a day or two. At the time the impugned words were posted the site was busy enough that a post without comments scrolled off the Active Topics page within hours. To find a post that had scrolled off, one would have to use a search engine like Google. According to Ms. Fournier, Google was not efficient in archiving Free Dominion threads at that time because Free Dominion’s server was overseas.

[81] Ms. Fournier testified that she first became aware of the thread when Dr. Baglow emailed her on August 10, 2010, and complained that the impugned words libelled him. Ms. Fournier investigated the thread. She noted that one person replied to that thread approximately three hours after it was posted and then no one did until Dr. Baglow posted about 27 hours later as Ms. Mew, bumping the thread back to the top of the Active Topics page. Prior to Ms. Mew’s post the post would have been difficult to find and was essentially dead. The Ms. Mew post, repeated the impugned words and added Dr. Baglow’s name to the thread. Ms. Fournier investigated and confirmed with Jay Currie that Dr. Dawg’s IP address was the same as Ms. Mew. She stated that Dr. Baglow had since admitted to making the Ms. Mew posts, but not until they had proof from Jay Currie.

[82] In making the decision to leave the post up, Ms. Fournier stated that they reasoned that anyone who was seriously interested in the reputation of Dr. Baglow would google “John Baglow”, not Dr. Dawg and Dr. Baglow’s name did not appear in Mr. Smith’s post. The Ms. Mew post concerned her because it brought Dr. Baglow’s real name into the discussion. If Ms. Mew had not turned out to be Dr. Baglow, she would have removed that post because it identified him. It was her opinion at this point that Dr. Baglow was not genuinely interested in his reputation at all.

[83] Ms. Fournier also testified that after Dr. Baglow complained, she researched the post made by Peter O’Donnell, “Hey yokels with pitchforks” and found his posting to be a very small part of a large, ongoing political argument between Dr. Baglow and Mr. Smith which started off with speculation about a Federal election and ended up with the Taliban and Canada’s treatment of Khadr. According to Ms. Fournier this argument had played out largely on Dr. Baglow’s blog although it had spilled over to Jay Currie’s blog, as well. Neither Ms. Fournier nor her husband participated in this debate.

[84] Ms. Fournier stated that as moderators of a very large, busy political forum she and Mr. Fournier took the deletion of posters comments very seriously. They could not possibly monitor every post made. Because of the political nature of the board, heated debates took place. If they were expected to delete every comment that was complained of, it would kill the discussion on the forum. Therefore, they investigated complaints carefully, but rarely deleted. In this case, they decided to leave the comment up because Dr. Baglow allowed Peter O’Donnell to write similar things on Dr. Baglow’s own blog. Those comments remained on Dr. Baglow’s blog for months and Dr. Baglow even responded to them there. The comments concerned a matter of public interest and in the Fourniers’ opinion it seemed like a typical fair comment on a political message board given the position of Dr. Dawg regarding Omar Khadr. These views would be well-known to readers of Dr. Dawg. If a reader of the impugned words did not know Dr. Dawg, they would not know who he was in real life either.

[85] Ms. Fournier also noted that in October 2009, Dr. Baglow was involved in a similar situation when he complained that Adrian MacNair had libelled him. Mr. MacNair posted a retraction and an apology for calling Dr. Baglow “an admitted supporter of the Taliban”. She regarded the blog that Dr. Baglow wrote after the retraction and apology as ridiculing, bullying and humiliating. They were aware of what Dr. Baglow had done to Mr. MacNair at the time that Dr. Baglow complained about the impugned words. They knew if they apologized he would do the same thing to them. Further, when considering whether the comments were defamatory, she also considered his own posts and his comments about others.

[86] Ms. Fournier testified that on August 30, 2012, they enacted a new policy on Free Dominion that people were not to post articles or links to Dawg’s Blawg. They did allow discussions about this case, but they did not want people talking about Dr. Dawg or trying to debate him on their website. Ms. Fournier went on to describe what she sees as a campaign of harassment by Dr. Baglow. It is her view that he is trying to ruin them financially, destroy her reputation and make others afraid to associate with them.

[87] In cross-examination Ms. Fournier explained that as the administrators of Free Dominion, she and Mr. Fournier can choose who can be a moderator. She and Mr. Fournier are the only people who can ban persons from the site. She noted two categories of banning. Trolls are banned (A troll is a person who is trying to get people into a great big fight). The Fourniers have banned people from both the left and right for trolling. But this happens rarely, about once every two months. Spammers are also banned. She and Mr. Fournier have technical responsibility for the site.

[88] Ms. Fournier testified that until 2014 anyone could become a member and post or comment by registering on Free Dominion. They would have to choose a screen name, have a valid email address and accept the terms of service (the site rules). Terms of service basically required members to play nice, use family friendly language, and keep debate civil. There are no releases or disclaimers. Ms. Fournier stated that while Free Dominion is set up as a conservative message board they did want left-wing commentators to participate and debate. They prided themselves on not banning people for their political views. Free Dominion had about 3,000 visitors a day. Visitors would be anyone who came on the site to look (“lurkers”). Ms. Fournier estimated that there were between 100 to 300 commenters a day.

[89] Ms. Fournier testified that if someone says something inaccurate in the blogosphere, or if an issue is controversial people are waiting to tell them they are wrong or to say “show us the facts”. According to Ms. Fournier this didn’t happen with the impugned words because people treat pseudonyms differently. She stated that if someone says something inaccurate about a person, that person can refute it on the spot and neutralize it. She stated that “we all look after our own reputations”. Individuals have the power to refute what is said about them. Dr. Baglow chose not to. Ms. Fournier further stated that lawsuits are dangerous for the blogging community. This is not traditional media. It is spontaneous and happens in a moment. People are already shutting down their comments section. Forums like Free Dominion are not the CBC or the National Post. They cannot afford legal costs or to pay damages. They do this as a hobby, not a business. If people had not donated to the Fourniers’ legal fund, they would have been destroyed years ago.

[90] Ms. Fournier disputes how many people would have known that Dr. Baglow was Dr. Dawg simply by reading Peter O’Donnell’s impugned words. It is her view that prior to Dr. Baglow calling her a Nazi there may have been about ten posts where his real name was used on Free Dominion out of 2,000,000. Thereafter there were many posts where she used his real name. She said that he used his pseudonym to call her a Nazi by her real name. He said that she was supporting the National Front. She was being uncivil to the uncivil by using his real name thereafter. Ms. Fournier agreed she called Dr. Baglow, “The thin skinned little weasel” (on Free Dominion, September 22, 2009). She stated that she was very angry at the time with respect to the above noted Nazi comments. She agreed she called him “a freaky little man” (on Free Dominion, November 2, 2009), but stated it was hyperbole. Ms. Fournier was referred to eight posts over eight months where she identified Dr. Baglow as Dr. Dawg. She was asked if someone had put Dr. Dawg in Free Dominion’s search engine they would be directed to these posts. She stated that the search engine did not really work.

[91] Ms. Fournier denied that she bears malice against Dr. Baglow. She said that anger is not malice. He made her angry but his specialty is to make people angry. She was asked if the impugned words had been said about someone else, would she have taken them down. She responded, she would not have taken them down if a pseudonym had been used. She felt that the impugned words were mild in the circumstances of the rough and tumble debate on the political blogosphere. Ms. Fournier stated that she did not handle his request to take down the impugned words any differently than other requests. They applied their usual policy concerning pseudonyms. They took into account a number of factors not the least of which, that he chose to put his name on it. She stated that they would have taken the Ms. Mew comment down if it had not been written by Dr. Baglow. Ms. Fournier reiterated her belief that Dr. Baglow was not really concerned about his reputation but with shutting Free Dominion down. Anyone really concerned about their reputation would not tell people to google Dr. Dawg and Free Dominion or make the Ms. Mew post.

[92] Ms. Fournier agreed that Dr. Baglow never called her a Nazi but he said she worked closely with the head of the Heritage Front. It was pointed out to her that she called Dr. Baglow “a turd sandwich” (Jay Currie’s Blog, “Hadjis v. Hadjis”) and on Free Dominion she referred to “his dinky little brain” (“The Dean Steacy Lawsuit, July 12, 2009). She said this was the normal stuff of the blogosphere.

Mark Fournier

[93] Mr. Fournier testified that he did not read the impugned words before receiving Dr. Baglow’s complaint. He said that the “Hey yokels with pitchforks” post did not make sense to him and he thought it may be part of another ongoing debate elsewhere. It was one person’s pseudonym insulting another person’s pseudonym. Further, it was obvious to him that this was a comment only and not a statement of fact. It was a typical “flame” comment. He stated that he did not think it was defamatory. It was Mr. Fournier’s understanding that a comment cannot be considered defamatory. He saw the complaint from Dr. Baglow as aggressive. However he was troubled by the Ms. Mew comment. He thought that Ms. Mew might be a girlfriend of Dr. Baglow or someone from Dr. Baglow’s threads.

[94] Mr. Fournier testified that he then went back to Ms. Mew’s first post on Free Dominion. That post read:

‘Genuine anti-Semites like John Baglow’

You do realize that this is defamatory and actionable, I trust.
Lucky for you Baglow doesn’t visit here.

[95] Mr. Fournier saw Ms. Mew’s posts as almost identical and began to suspect Ms. Mew might be Dr. Baglow or someone from his site. Ms. Fournier contacted Jay Currie and confirmed that Ms. Mew was Dr. Baglow. Further, Mr. Fournier testified that a sock puppet is designed to deceive. According to him there is almost an obligation to out a sock puppet in the blogosphere. In addition, he agreed with Ms. Fournier’s post at Free Dominion on August 12, 2010, “FD gets libel notice, but something has that wet Dawg smell” and stood by his post at Free Dominion on August 12, 2010, “John Baglow puts on his frilliest Internet dress”. The photo that he included (a photoshopped picture of Dr. Baglow in a corset with stockings) was a typical spoof. According to Mr. Fournier one can find a “bazillion” of these on the Internet.

[96] Mr. Fournier testified that he never believed the impugned words were defamatory and would not have taken the words down for anybody. However, he felt that the Ms. Mew comment added a whole new dimension. It was a game changer. Mr. Fournier felt they were being played, that Dr. Baglow was trying to get damages. It was logical for them to out Dr. Baglow for what he did. Mr. Fournier testified that the emails between Jay Currie and Dr. Baglow on August 11, 2010 (“Like lancing a boil” – Exhibit 10) show Dr. Baglow’s state of mind. Dr. Baglow never mentioned suing Mr. Smith. Mr. Fournier felt that Dr. Baglow was trying to bully them.

[97] Mr. Fournier stated that Free Dominion encourages the free flow of ideas. If they had taken down the post, it would destroy the board. He added that it was a serious misrepresentation of their views to suggest that they want unfettered free speech on the Internet. It is their position that defamation law is inadequate to deal with situations like this. It is their position that they should not be responsible for the words of others. They are here because two old guys got into a fight on the Internet and somebody wanted to get into a political fight. Mr. Fournier stated that defamation law has become the new section 13. He stated all he and Ms. Fournier do is provide a place for people to talk. They should not be required to have a battery of lawyers.

Dr. Greg Elmer

[98] Dr. Elmer was appointed by the Court as an expert pursuant to Rule 52.03. He holds a Ph.D in media and communication from the University of Massachusetts Amherst. Dr. Elmer is currently a Professor of Radio and TV Arts and the Bell Globemedia Research Chair at Ryerson University. His curriculum vitae was reviewed and I found him to be an expert qualified in the area of Internet social media, culture and communications, including communications of a political nature.

[99] A number of questions were put to Dr. Elmer which were appended to the order made by the Court on July 16, 2014, appointing him as an independent expert in this matter. Dr. Elmer prepared a report in response. Dr. Elmer indicated that he attempted to use accessible,
non-specialist language in the report, but he provided two definitions to assist:

Platform – to refer to social media sites such as Twitter and Facebook, replacing the more generic term “website”

Actor – to denote an individual who engages in political commentary on various Internet-based platforms and sites.

[100] Dr. Elmer stated that computer mediated communication is a much less formal type of communication particularly when compared to previous analogue forms. The same is true for online political actors on chat rooms, blogs and discussion boards (“BBS”). Short form expressions and acronyms such as ICYMI (In case you missed it) or IMHO (In my humble opinion) are commonly used in posts and comments. Further computer mediated communication is also characterized by its lack of punctuation and use of “emoticons” to denote feelings and moods. Many linguistic conventions and styles on BBSs, chat rooms, et cetera are derivative of early computer hacker language. They are common expressions, phrases and styles used specifically on Internet-based sites and platforms, including those frequented by online political actors.

[101] Dr. Elmer noted that because of the brevity of online communications, an online political actor’s choice of words is important. In addition, the lack of non-verbal cues (for example facial expressions that might indicate sarcasm or joking) tend to exacerbate debates over the meaning and intent of specific phrases and words. Misinterpretations are frequent. Dr. Elmer also noted that in chat rooms and blogs, conversations and debates are anchored by typed/written language, and disputes, misunderstandings and claims about positions often refer back (with the help of hyperlinks) to the specific words used in posts.

[102] Dr. Elmer referred to a study of 260 blogs by Zizi Papacharissi. She stated that bloggers, as a group, tended to use not only informal but “whimsical” language. Among her sample study, 54% of the blogs used humour, sarcasm (42%), irony (42%), self-deprecation (39%), jokes (29%) and offensive language (14%). However, in cross-examination Dr. Elmer indicated that this study was based on blogs in general. If the focus had been partisan, political blogs, these forms of communication (for example, sarcasm) would be even higher. He agreed language can be harsher, more vulgar, spirited and personally directed on political blogs and message boards. He also agreed that invective and hyperbole are common.

[103] Dr. Elmer stated that it is common to have large numbers of individuals visit and/or read posts/comments on discussion boards and blogs without ever posting anything (“lurkers”). He referred to a report prepared by PMB Measurement Bureau which found that the number of Canadians who read blogs on a monthly basis (28% or 7.9 million) is far higher than those who claim to have published a blog (4%) or left comments on a blog (15%).

[104] Dr. Elmer stated that standards of conduct for those who post comments on boards and blogs are often discussed by the participants, owners, and moderators of boards, blogs, and social media platforms. Generally, standards of conduct are either set by the heavier users of a site or more tightly governed by the moderator(s) or owners. Differences are explained by a number of factors including, the historical founding of the discussion board or blog, the constitution of its members or primary users and the specificity of the site’s principal set of issues and mission.

[105] Dr. Elmer noted that in the early days of political blogging in Canada (roughly 2004-2009), bloggers would engage in spirited partisan debate. He noted that online political actors expected a more intensely partisan environment during heightened periods of political activity in Canada (for example, election campaigns, political scandals, major international events and conflicts).

[106] Dr. Elmer referred to T. Giasson et al.’s 2012 survey of political bloggers across Canada which found that common expectations among a large cross section of online actors are shared. Bloggers listed “attack and critiquing opponents” as the most common goal of blog posts, followed by the forwarding of a partisan position and defending and promoting the opinions of perceived allies. Dr. Elmer concluded that overall, online political actors are well aware of the confrontational nature of Internet-based political activity and communication. At trial he stated that they expect it.

[107] Dr. Elmer stated that on sites with more active moderators or owners, political speech and activity tends to be more actively policed and regulated or users tend to share a common conception of acceptable language and behaviour. He noted that some sites may post explicit directions for users in order to inform users about what is considered unacceptable behaviour on that specific site. However, he believed generally, that to encourage participation on blogs and boards, moderators tend to limit their interventions to the harshest of conflicts, and only after encouraging users to settle disputes themselves.

[108] It is Dr. Elmer’s view that the overall tone and perceived partisanship of a particular blog or board may encourage or discourage individuals from posting or commenting. Many sites have long histories and reputations of fostering political debate, sticking to political positions, or sometimes engaging in harsh language and personal attacks. Individuals may also avoid or conversely, seek out sites that are owned or moderated by groups of online actors, typically sharing a common political viewpoint in the hopes of avoiding or encouraging debate. The “community”-based sites (with multiple participants) can witness sharper exchanges as people seek to cultivate a more visible online presence and reputation. Dr. Elmer stated that the same can be said of individual blogs. People are seeking to establish their own presence and reputation.

[109] A recent survey of political bloggers conducted by Dr. Elmer’s research lab and co-author Dr. Ganaele Langlois found that political bloggers were motivated to spend upwards of eight hours per week on their blogs in the hopes of achieving some political influence. The survey found that individual motivations included a desire to “voice opinions” (61%), seek social and political change (18%), complement the content of mainstream media (18.5%), circulate information (12%) and “fight opposing ideas” (9%). While Canadian bloggers view their goals as “informing their readership” (49%), slightly more saw “debate” as their main goal (51%). According to Dr. Elmer at trial, people want to be heard. Blogs and bulletin boards are sought out by individuals looking for opinion and content not covered, or poorly covered by mainstream media.

[110] Dr. Elmer noted that blogs are archive oriented. Instead of substituting new materials for old ones, as is normally done on regular webpages, postings are added without erasing previous content. The mounting compilation of postings serves as a context for readers of blog sites. He also noted that bloggers and other online actors have distinctly different expectations of social media and web and blog platforms than of mainstream media. He stated that the obvious difference between the nature of discourse in online communication is that such sites offer a 24/7 always-on ability to debate and interact with others. Posts and comments appear in near-real time (except when a moderator’s approval is required). The speed of communications facilitates more personal, “life-like” interactions. Dr. Elmer stated that conversations with lags in responses or non-responses can become fodder for ridicule.

[111] In addition, Dr. Elmer indicated that newspapers and the mainstream media are still regarded as professions that conform to generally held practices, ethics and guidelines set by journalist associations, university/college departments and media employers. The same cannot be said of bloggers or other online political actors.

[112] Dr. Elmer noted that bloggers and other online actors often hyperlink to documents, pictures and comments that “speak for themselves”. Therefore, unlike mainstream media, there is much less need to provide background and summaries of the issues at hand. As a consequence discourse tends to focus more on opinion, argument, sarcasm and questions.

[113] Dr. Elmer stated that the comments section of sites serve as a key indicator for owners and moderators of their sites’ reach, popularity and influence. He referred to Giasson et al.’s blog survey which found that 90% of partisan bloggers stated that comments were an important component of their site. He also stated that more engaged online political actors commonly read and leave comments on other bloggers’ sites. He stated at page 9-10 of his report:

Some bloggers who post on their own blog, with commentary and hyperlinks to other blogger posts (hosted elsewhere) tend to establish more direct conversations and debates. These exchanges (comments left on other bloggers posts, or links to other blogs) are typically meant to solicit responses and exchanges. In my experience, few of these comments, particularly if partisan or personal in nature, are left unanswered. The visibility of such comments demand a response from a blogger. Once again, given that many bloggers seek to cultivate their reputation in and outside of the “blogosphere” as someone with political influence, provocative comments and questions left on a blogger’s site become key sites of reputation building. Some mainstream media, particularly on the online…

[114] Dr. Elmer indicated that personal attacks are not uncommon on the Internet especially among those who engage in political debate and discussions. He stated that researchers debate the perception of such attacks. There is little empirical research or surveys on this topic. One researcher, Dr. Michael Keren, argues that personal attacks are frequent, expected and calculated although he qualifies this by restricting his comments to anonymous actors who “do not have to develop their personalities, relate to each other’s interests, negotiate compromise, form coalitions, elect officials, fight wars or make peace”. Dr. Elmer’s research however, points to a more nuanced interpretation of online political communications pointing to the structure of blogs and boards, their ownership, moderation, mission and history, the reputation of the actors in question and the broader partisan environment (elections etc.). In his opinion all these factors need to be considered when trying to determine how readers or actors interpret debates based on fact, and those that engage in personal attacks.

[115] Dr. Elmer stated that conversations and debates on specific topics and among particular actors can easily move from one forum to another. However, when engaged in debate with a particular actor, moving to another platform, for example from a blog to a bulletin board, would likely be interpreted as disengaging from a debate and discussion, or retreating to a more familiar or supportive space. Depending on the familiarity of the actors involved, such movements could easily be noted and read. However, moving a discussion/debate from one platform to another may not be apparent to a broader audience unless it was clearly noted on the site of the first exchange.

[116] With respect to anonymity Dr. Elmer noted a 2004 survey of bloggers by Herring, Scheidt, et al. that full names were found in 31.4% of sites, first names on 36.2% and pseudonyms on 28.7%. With respect to whether a political actor’s anonymity affected their perceived credibility, Dr. Elmer stated at page 11-12:

In my experience, online political actors are more concerned with the contributions of an actor, their treatment of others in the blogosphere, and perhaps most importantly their overall reputation. An actor’s history of interactions is a crucial component of online politics, regardless of the status of their personal identification. Credibility is, in short, gained over time. An anonymous actor may take longer to establish this trust and confidence, but so might a named individual who is not well known beyond his or her small community. An anonymous actor who appears just in time for an election campaign, will of course face greater scrutiny – a common occurrence in the blogosphere and elsewhere. Those unfamiliar with the conventions of the blogosphere and elsewhere online however may be more suspicious of anonymous posts, comments, and online actors – such has been the critique of many journalists who have sought to highlight their professional status, responsibility, and accountability to certain standards and ethics in the age of broadening political communications.

[117] In cross-examination Dr. Elmer agreed that once something is posted on social media, unless the person who put it up there, or the moderator takes it down, it is very difficult to remove. He agreed that there may be significantly more readers (lurkers) than participants. It is extremely difficult to identify who those lurkers are and to determine their characteristics. Dr. Elmer agreed that employers and prospective employers use social media to investigate employees or potential employees and he was aware of cases where employees have been fired or disciplined. He believed that government officials may track social media and that security services use it to obtain information. He agreed that social media has a dark side and can be abused. Dr. Elmer was not familiar with the term “Godwin’s Law” but agreed with its premise. He agreed that the blogosphere encourages open threads going on and on and that as a thread goes on temperature rises and the argument becomes more personal. He stated that actors take pride in the number of comments generated by their posts. The number of comments indicates the popularity and importance of the blogger.

[118] Dr. Elmer thought that perhaps 50% of blogs are moderated. Newspapers are very heavy moderators of their blogs. They check for hate speech, obscene language and contentious content. He stated that blog posts are indexed vertically with the most recent viewed first, whereas typically message boards have an indexed main page from which a choice is made. He was familiar with Dawg’s Blawg and would classify it as a political blog. He stated that Free Dominion is a typical message board in its format and he would classify it as a political forum. He believed there are some 700 political blogs in Canada although others say there are between 500 to 1,000. He stated that bulletin boards tend to be moderated by more than one person but blogs tend to be run by one person. Generally speaking there are more actors posting on bulletin boards, whereas on blogs there is one actor that is more permanent.

[119] Dr. Elmer stated that brevity is a feature of online discourse. He pointed to the size of computer screens. If too much text is used in a blog post the reader will have to scroll down. Studies have shown that readers do not like to scroll down. Therefore to get the attention of readers the post should be short and punchy. The speed of the technology also lends itself to short forms.

[120] Dr. Elmer agreed that it is more important for posters who are anonymous to establish a reputation. He agreed that if you are not looking at someone face to face when communicating with them, you are more apt to be rude, antisocial or brash. He agreed that journalists use much more formal language. Dr. Elmer agreed that the ethos of the Internet is that information needs to be free. Those who are heavy handed in moderating or rejecting comments will not be well looked upon. He agreed that this applies across the political spectrum. Historically and practically the Internet supports the free flow of information in western democracies.

[121] Dr. Elmer was referred to his comment at page 9 of his report that few partisan or personal comments are left unanswered. He stated that if a commenter challenges an opinion of a blogger, people are waiting to see a rejoinder and expecting a rejoinder. He stated that bloggers want to be heard. It is an egocentric thing. They are seeking to cultivate an audience and enhance their reputation Further, people using pseudonyms want a reputation for their pseudonym.

[122] Dr. Elmer noted the left and right division in the political blogosphere. There are also centrist blogs. He characterized the interaction between left and right as intense and conflicted, with people talking past each other.

[123] Dr. Elmer referred to the indexicality of bulletin boards. A reader will see a list when he/she goes on a bulletin board. It will be a list of threads or a list of forums (based on subjects). The reader may then be faced with subforums. On a subforum there may be a list of threads.

[124] Dr. Elmer agreed that political actors (those who post or comment) will know that the environment is harsh. They know they will encounter humour, sarcasm and irony. Frequent readers will also be aware of the language they can encounter. Community-based sites (including bulletin boards) may have sharper language. Free Dominion is such a
community-based site and just the sort of bulletin board where sharp exchange can occur. Frequent readers would know this. He also agreed that the tone of discourse is similar on Dawg’s Blawg and frequent readers would know this. Both sites have very strong opinions. Dr. Elmer agreed it would be fair to say that participants in Canadian political blogs and forums expect debate.

[125] Dr. Elmer agreed with the assertion that people who are consuming both mainstream media and new media know that they will not see the same thing, but qualified his answer to apply to those who are frequent users. A person who does not participate at all in social media, but who went on Free Dominion would be surprised. Dr. Elmer agreed that personal attacks, abusive language, vulgar language, hyperbole et cetera would be seen in partisan political platforms, more particularly hyper-partisan ones. The more partisan the more sarcasm, hyperbole et cetera is likely and the more likely to see a comparison to Stalin and Hitler.

[126] Dr. Elmer also agreed it is generally expected that if a comment is made about a person in this milieu, the person will respond. He stated that a frequent reader would expect it. The person who fails to respond loses the debate and will lose reputation as an active blogger. Reputation means that others will look for a person’s views or give credence to that person’s views.

[127] Dr. Elmer understood “flame wars” to be more personal and less substantive. One blogger can get into an argument with another of a highly personal nature. Personal attacks are not uncommon. However Dr. Elmer did not agree with Dr. Keren that personal attacks are frequent, expected and calculated. It is Dr. Elmer’s view that readers expect colourful language and harsh debates but he is not sure personal attacks are expected. Many people are still shocked by personal attacks. However, Dr. Elmer agreed that the frequency of personal attacks increases, the more partisan the blog.

[128] Dr. Elmer was asked to provide his opinion on how readers would respond based on the following assumptions:

a) the allegedly defamatory words were contained in an originating post of a discussion thread;

b) the discussion thread was in a highly partisan political message board;

c) the moderation policy of the message board was to allow anything but the most extreme sort of posts and comments;

d) the message board had always operated in this manner;

e) the very purpose of the message board was to be a venue for open debate;

f) the poster in question was well known for engaging in over-the-top rhetoric, in a disjointed manner.

[129] Based on these assumptions it was Dr. Elmer’s view that the readers would likely think that the poster was trying to provoke debate. Dr. Elmer further stated that if the post was disjointed and over the top, the likelihood was that readers would ignore it.

Spoliation

[130] Ms. Fournier has raised, on behalf of the defendants, the issue of spoliation. It is her contention that the plaintiff intentionally, recklessly or negligently caused the comments under his old blog to disappear from public view on or about April 3, 2011, in breach of the Sedona Canada Principles Addressing Electronic Discovery and Rule 29.1.03(4). It is her contention that the defendants have thus been prejudiced in the preparation of their case. She stated that it is very difficult for them to show the back and forth that was occurring between Dawg’s Blawg and Free Dominion over the years.

[131] I do not intend to review the evidence on this issue in any great detail. The evidence was very technical and very lengthy. Further, this issue has been a distraction from the important issues before the Court. A detailed review of this evidence, which I have thoroughly perused and considered, would be of little assistance to the parties in light of my determination that on the totality of the evidence before me, I cannot find that the plaintiff intentionally, recklessly or negligently caused the comments under his old blog to disappear. In fact, the comments have not actually disappeared (which will be explained below), they have simply disappeared from public view. In any event there is significant evidence before the Court as to the back and forth that was occurring between Dawg’s Blawg and Free Dominion over the years.

[132] Dr. Baglow testified on this issue. He has little technical knowledge and deferred to Mr. Bow on technical matters. Mr. Bow provided advice and technical assistance to Dr. Baglow. Dr. Baglow generally explained that in 2010 he was using a system for his blog called Haloscan and that Mr. Bow suggested to him that he move over to Movable Type. Dr. Baglow agreed.

[133] Unfortunately, while Mr. Bow was able to successfully migrate the posts from his “old” blog to his “new blog” (Hereafter, I will refer to Dr. Baglow’s old blog and new blog when discussing spoliation) approximately 40,000 comments from his old blog could not be moved. Dr. Baglow testified that he was in despair over this. As was indicated in the evidence in this case, the comment section of a blog is very important to bloggers.

[134] Mr. Bow was called to testify with respect to the issue of spoliation. I found him to be forthright and candid. He did his best to recall what had occurred, noting that this had occurred some three and a half years previously. He candidly admitted when he “misremembered” a point. Mr. Bow did not get paid for his work in moving Dr. Baglow’s blog. He did it gratis, although Dr. Baglow now pays him for hosting the site. Suffice it to say he has nothing to gain from this litigation. It is to be noted Mr. Bow is not involved in the left/right battle that has been played out in this case. He is a centrist. In fact, he finds Dr. Baglow’s views to be too far left. It is also to be noted that while he has greater technical expertise than Dr. Baglow, he is not an expert in technical matters, as his curriculum vitae and background would attest.

[135] Mr. Bow testified that he contacted Dr. Baglow in 2010 and recommended that he upgrade his server. Dr. Baglow was using Google Blogspot at the time. The upgrade would give him a formal domain name and a simple web address. It was Mr. Bow’s view that Google Blogspot is not as good a platform as it could be. Mr. Bow used Movable Type as a platform.

[136] Mr. Bow testified that Dr. Baglow had been using Haloscan for his comment section. Haloscan had been bought out by Echo but because of Dr. Baglow’s technical ineptitude he never upgraded his old comment section to the new format required by Echo. Echo was bought out by Disqus but because Dr. Baglow had not made the above noted upgrade he was not able to convert those comments to Disqus.

[137] Over a couple of weeks in November 2010, Mr. Bow moved Dr. Baglow’s site from http://drdawgsblawg.blogspot.com to http://drdawgsblawg.ca. Mr. Bow set about building the new site using Movable Type and importing the old posts from Blogspot. Unfortunately try as he might he was unable to convert the old comments (that is, the comments from the old posts) over to the new system. Mr. Bow stated that he did not have the conversion programs or the skill to do it.

[138] Therefore the old comments could not be seen by the public on the new blog although the old posts successfully made the migration. Mr. Bow put all of the old comments in an XML file on his hard drive where they still remain today. The plaintiff has provided a copy of the XML file to the defendants during the course of this litigation. Unfortunately while the comments all appear on the XML file they cannot be matched with their original post, nor can it be seen what, with respect to each comment, is being responded to.

[139] An email exchange between the plaintiff and Mr. Bow supports their evidence. On November 16, 2010, Mr. Bow wrote to Dr. Baglow as follows:

Okay, I’ve had a chance to look this over. It looks as though exporting from Echo into Movable Type is possible, but cumbersome. We may want to set aside, say, an evening or so where we take the site offline or something so we can be sure to make the change-over without any new posts complicating the process.

You may not be surprised to learn that Echo does not make it easy to import comments into Movable Type. However, it seems theoretically possible for Echo to import comments into Blogger. Once there and (hopefully) merged with your current posts, export from Blogger to Movable Type comes much easier. But, as you can see, it can be hairy.

What we need to do now is start backing up. I’ve already exported your comments into an XML file. We should probably back up Blogger posts as well, so we at least have the data, in case we screw things up.

[140] On November 18, 2010, Mr. Bow wrote:

Okay, the good news: it looks like we’ve got Echo synchronizing with Blogger, so from this point on, Blogger has a copy of any new comments that are added, and that makes transferring over to Movable Type easier. The bad news is, it looks like Echo won’t synchronize any comments that were made before I upgraded to the new template. But I have a backup of all comments made to that point, and will try the path of transferring them over to Disqus. When that happens, that should be the last we have to deal with Echo, and we can focus on transferring the site from Blogger onto my servers.

[141] On November 19, 2010, Mr. Bow wrote:

We’ve reached the point where we can dispense with Echo. You can cancel your membership and walk away, so you don’t have to worry about a $10 charge after today. All comments appear to be in Disqus, and new comments are being synchronized with Blogger.

I’m still having some frustrations getting all comments synchronized between Blogger and Disqus, which is frustrating. I’m almost tempted to see if I can just incorporate Disqus into your Movable Type blog, but that just opens up the possibility that your Echo problem will be repeated at a later date.

[142] On November 30, 2010, Mr. Bow wrote:

I’ve made no progress on rescuing your old comments. In discussion with Disqus, I fear they are about to say that it’s a Blogger problem and not their problem, and I’m not sure what Blogger’s going to do. We’ll see. They have asked for the Echo import file and I’ll send that to them shortly.

[143] On January 5, 2011, Mr. Bow wrote:

I fear, though, that there’s nothing I can really do to get the old comments transferred over. The bulk of them appear to be in a format that neither Echo nor Disqus fully supports, since they’re in the old Haloscan format and it wasn’t updated. Apparently, this means that while the comments will show up on Disqus, but can’t be transferred to Blogger, and that means export and transfer to Movable Type is not easy. This I find to be especially frustrating, since the comments are THERE! I just can’t get them to move. As you read in the e-mail, the Disqus support people are considering this matter as a feature request, so we’ll see what happens. Possibly, I could try putting a Disqus widget in the older comments, so that they show up, or maybe a link to the corresponding Blogger article where the comments can still be seen.

[144] The totality of the evidence supports that the move from the old blog to the new blog had nothing to do with the litigation, that the move was made for valid reasons, that Mr. Bow tried for some time to move the old comments over to the new blog, but that he simply did not have the technical skills to make it happen and that Dr. Baglow was very upset that it did not happen.

[145] The story does not end here. The blog began to experience a significant problem with spam and Mr. Bow assisted Dr. Baglow in dealing with this in March 2011. The spam was interfering with the comments section of Dr. Baglow’s new blog. This is evidenced in a series of emails between them from March 2, 2011 (Exhibit 13). On March 2, 2011, Dr. Baglow wrote Mr. Bow, “The spam started up again with a vengeance today. Thirty or so messages. How are they evading Captcha?” On March 30, 2011, Mr. Bow wrote:

We’re fighting a losing battle here in the comment war. Another site I manage, which is on a separate Hostgator installation, has basically had its comments shut down because of the extent of the spam barrage. I’ve come to the conclusion that we simply don’t have the resources to stem the tide. So, what do we do instead?

My preferred solution would be to make it another server’s problem, particularly one whose whole mandate is managing comments. The obvious contender is Disqus, which currently holds your old comments. The changeover can be made within an evening, although importing the Movable Type comments would take a little longer. Then we delete the vulnerable scripts from the system, and the comment spam is stopped cold.

[146] Dr. Baglow responded:

Do we know that the Moveable Type comments can be imported into Disqus?

Because I don’t want the same thing happening that happened when I moved over. If this can be done, then please go ahead! But there are many good comments in the current platform.

[147] On April 2, 2011, Mr. Bow wrote:

I’ve had a breakthrough regarding importing Movable Type comments into Disqus (indeed, this breakthrough could allow me to import the old Blogger comments into the same platform). I am now in the process of changing over my own blog to the new system, so please have a look and see what you think.

There are some little gotchas that I have to be careful about (which is why I tested on my system and not yours), but it looks like a full conversion will be easy to handle, and we can shut the old Movable Type commenting system down, taking the spambot comments off of our server.

With that in mind, are you up for it?

[148] On April 3, 2011, at 11:04, Mr. Bow wrote:

Okay, I logged in as you and looked around. Everything seems to be in order.

I’ve taken the liberty of adding myself as moderator on your site.

We’ve now fully imported all the MT comments to Disqus. I just have some template tweaks to make, but as far as I can tell, we’re live!

[149] Later on April 3, 2011 at 12:29, Mr. Bow stated in part:

Look around. See if we can’t get the Haloscan comments, currently stored on your Disqus account, to appear on their proper pages, as well (this would be a bonus).

[150] Finally, on May 4, 2011, Mr. Bow wrote:

I’m looking at the old Disqus comments on Blogger, with an eye to moving them over. I have clicked for an export of the old data, so you should be receiving notification of same soon. Could you forward me the e-mail when it comes?

[151] Thus it appears from the email correspondence that Mr. Bow was continuing in his attempts to have the old comments moved to the new blog until at least May 2011. However, it is to be noted that the old comments did not disappear from public sight on the old blog in November 2010. Mr. Bow agreed that they were still viewable on the old blog after November 2010 (something that Dr. Baglow did not appear to know in his evidence in cross-examination). In fact, Ms. Fournier was able to view the old comments on Dawg’s Blawg (on “They dare call it treason”) on March 30, 2011, when she was preparing the Statement of Defence. On April 3, 2011, she went back to the plaintiff’s blog to try and get a copy of the comments on the “Gitmo Kanga-ruse” post and found they were gone. Ms. Fournier’s suspicions were aroused and she believes that the old comments were removed by the plaintiff. The smoking gun for her was the fact that a test comment was left on April 3, 2011, by Dr. Dawg. The IP location was shown to be Kitchener.

[152] In cross-examination Mr. Bow could not remember making the test comment. However at the time of his cross-examination, Exhibit 13 was not before the Court (the emails between him and Dr. Baglow March-May 2011). Had those emails been put to him, his memory could well have been refreshed. In the April 3, 2011, email at 11:04 Mr. Bow stated, “I logged in as you and looked around. Everything seems to be in order”. If Mr. Bow was intentionally or recklessly causing the comments to disappear why would his emails to Dr. Baglow indicate that he was still going to try to get the old comments to appear on the new blog, until at least May 4, 2011?

[153] Mr. Bow was asked to explain why the old comments would have disappeared from the old blog after March 31, 2011. He said that he could only speculate that since it was the end of the month, that Google Blogspot may have changed its terms of reference or something so that the formats that Google would accept from Disqus were no longer acceptable. He went on to say that it was his speculation that Google changed its requirements for widgets and so the link between Disqus and Blogspot broke. I have no reason to doubt this explanation, as I stated earlier Mr. Bow impressed the Court in giving his evidence in a candid and forthright manner.

[154] I note that Mr. Bow came back to Court after a break during his cross-examination and advised the Court, without prompting, that he had gone on his computer during the break and found that the old comments were, in fact, in Disqus. He seemed genuinely surprised. If he and Dr. Baglow were intentionally, recklessly or negligently causing the old comments to disappear, why would he have told the Court they still exist in Disqus and why would his emails indicate from November 2010 until May 2011 that he was trying to get the old comments to appear on the new blog? While Ms. Fournier and the other defendants may have their suspicions, I do not.

[155] Finally, I find it perplexing that while Ms. Fournier advised the Court that without the old comments she was not able to properly prepare for her case, in the months after Mr. Bow testified, during the hiatus in the trial, she never requested that Dr. Baglow provide the old comments, as contained in Disqus. She knew she had a right to further discovery as evidenced by her requesting, after Mr. Bow had testified, copies of all emails between Dr. Baglow and Mr. Bow after November 30, 2010, which were provided.

The Case Law

[156] The existing law of defamation was summarized in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 (“Grant”) at paragraphs 28 and 29. In order to succeed in a defamation action a plaintiff is required to prove (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words referred to the plaintiff; and (3) that the words were published. If these elements are established on a balance of probabilities, falsity and damage are presumed and the onus then shifts to the defendant to advance a defence in order to escape liability.

[157] The law of defamation involves a delicate balance between two fundamental values: the worth and value of an individual’s reputation, which the law of defamation seeks to protect, and the freedom of expression, which the law of defamation inherently limits. The Supreme Court of Canada has recently considered the law of defamation and this balance in three cases: WIC Radio Ltd. v. Simpson; 2008 SCC 40, [2008] 2 S.C.R. 420 (“WIC Radio”), Grant and Crookes v. Newton, 2011 SCC 47, [2011] S.C.J. No. 269 (“Crookes”).

[158] In WIC Radio the Supreme Court of Canada dealt with the defence of fair comment. Justice Binnie commenced his reasons by referencing the above noted balance at paragraphs 1 and 2:

1. This appeal requires the Court to re-exam the defence of fair comment which helps hold the balance in the law of defamation between two fundamental values, namely the respect for individuals and the protection of their reputation from unjustified harm on the one hand, and on the other hand, the freedom of expression and debate that is said to be the “very life blood of our freedom and free institutions”: Price v. Chicoutimi Pulp Co.(1915), 1915 CanLII 66 (SCC), 51 S.C.R. 179, at p. 194…

2. …An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to “chill” freewheeling debate on matters of public interest…

[159] Justice Binnie also noted that Canadian courts have frequently pointed to the need to develop the common law in accordance with Charter values, including the law of defamation. He quoted Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 (“Hill”) where the following was stated at paragraph 95:

Historically, the common law evolved as a result of the courts making those incremental changes which were necessary in order to make the law comply with current societal values. The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system. It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter.

[160] At paragraph 26 and 27, Justice Binnie distinguished fact from comment. He stated:

26. The pleaded innuendo that Simpson was so “hostile toward gay people to the point that she would condone violence toward gay people” (trial reasons, at para. 19 (emphasis in original deleted)) is framed as an inference (“would condone violence”) from a factual premise, (i.e. was so “hostile toward gay people”. In Ross v. New Brunswick Teachers’ Assn. (2001), 201 D.L.R. (4th) 75, 2001, NBCA 62, at para. 56, the New Brunswick Court of Appeal correctly took the view that “comment” includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”. Brown’s The Law of Defamation in Canada (2^nd ed. (loose-leaf)) cites ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative or hyperbolic language is used (Brown, vol. 4, at p. 27-317) in the context of political debate, commentary, media campaigns and public discourse. See also, R. D. McConchie and D. A. Potts, Canadian Libel and Slander Actions (2004), at p. 340.

27. The respondent on this appeal did not challenge the view that Mair’s imputation, that Simpson “would condone violence toward gay people”, was a comment not an imputation of fact (Factum, at para. 40). I agree that the “sting” of the libel was a comment and it would have been understood as such by Mair’s listeners. “What is comment and what is fact must be determined from the perspective of a ‘reasonable viewer or reader’” (Ross, per Daigle C.J.N.B., at para. 62). Mair was a radio personality with opinions on everything, not a reporter of the facts. The applicable defence was fair comment. On that point, I agree with the trial judge.

[161] It was held in WIC Radio that to make out the defence of fair comment, the defendant must prove that: (1) the comment is on a matter of public interest; (2) the comment is based on fact; (3) the comment, though it can include inferences of fact, is recognizable as comment; and (4) any person could honestly express that opinion on the proved facts. The plaintiff can, however, defeat the defence by proving that the defendant was actuated by express malice.

[162] With respect to the existence of a factual foundation, Justice Binnie stated that what is important is that the facts be sufficiently stated or otherwise be known to the listeners (here readers) so that they are able to make up their own minds on the merits of the comment. If the factual comment is unstated or unknown, or turns out to be false, the fair comment defence is not available. He stated that a properly disclosed or sufficiently indicated (or so notorious as to be already understood by the evidence) factual foundation is an important objective limit to the fair comment defence. With respect to the requirement of “honest belief”, Justice Binnie stated the following at paragraph 40:

40. “Honest belief”, of course, requires the existence of a nexus or relationship between the comment and the underlying facts. Dickson J. himself stated the test in Cherneskey as “could any man honestly express that opinion on the proved facts” (p. 1100 (emphasis added)). His various characterizations of “any man” show the intended broadness of the test, i.e. “however prejudiced he may be, however exaggerated or obstinate his views” (p. 1103, citing Merivale v. Carson (1887), 20 Q.B.D. 275 (C.A.), at p. 281). Dickson J. also agreed with the comment in an earlier case that the operative concept was “honest” rather than “‘fair’ lest some suggestion of reasonableness instead of honesty should be read in” (p. 1104).

[163] I note that the defendants rely on the reasons of Justice Lebel in WIC Radio in support of their position that the impugned words in this case are not prima facie defamatory. Justice Lebel stated the following at paragraphs 68 and 69:

68. This test is often construed as setting a low threshold for establishing prima facie defamation. Gatley on Libel and Slander (10th ed. 2004) (“Gatley”), notes that “it may well be the case that the common law takes a rather generous line on what lowers a person in the estimation of others” (p. 18, footnote 32). Dickson J. made a similar point in Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] 1 S.C.R. 1067, in referring to the “low level of the threshold which a statement must pass in order to be defamatory” (p. 1095).

69. The case law generally bears these opinions out. However, courts should not be too quick to find defamatory meaning – particularly where expressions of opinion are concerned. The test is not whether the words impute negative qualities to the plaintiff, but whether, in the factual circumstances of the case, the public would think less of the plaintiff as a result of the comment. Relevant factors to be considered in assessing whether a statement is defamatory include: whether the impugned speech is a statement of opinion rather than of fact; how much is publicly known about the plaintiff; the nature of the audience; and the context of the comment. I will demonstrate, based on the first two of these factors in particular, that Mair’s comments would likely not have led “right-thinking” members of the public to think less of Simpson.

[164] In Grant the Supreme Court of Canada held that the common law of defamation should be modified to recognize a defence of responsible communication on matters of public interest. While this defence has not been raised in this case, for the purpose of the matter at hand I would note that the Court again referred to the balancing of competing fundamental values at paragraphs 1-3:

1. Freedom of expression is guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. It is essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization.

2. But freedom of expression is not absolute. One limitation on free expression is the law of defamation, which protects a person’s reputation from unjustified assault. The law of defamation does not forbid people from expressing themselves. It merely provides that if a person defames another, that person may be required to pay damages to the other for the harm caused to the other’s reputation. However, if the defences available to a publisher are too narrowly defined, the result may be “libel chill”, undermining freedom of expression and of the press.

3. Two conflicting values are at stake – on the one hand freedom of expression and on the other the protection of reputation. While freedom of expression is a fundamental freedom protected by s. 2(b) of the Charter, courts have long recognized that protection of reputation is also worthy of legal recognition. The challenge of courts has been to strike an appropriate balance between them in articulating the common law of defamation. In this case, we are asked to consider, once again, whether this balance requires further adjustment.

[165] In Grant the Supreme Court referred to WIC Radio and stated the following with respect to the defence of fair comment at paragraph 31:

31. In addition to privilege, statements of opinion, a category which includes any “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” (Ross v. N.B.T.A., 2001 NBCA 62, 201 D.L.R. (4th) 75 (N.B. C.A.), at para. 56, cited in Simpson, at para. 26), may attract the defence of fair comment. As reformulated in Simpson, at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. Simpson expanded the fair comment defence by changing the traditional requirement that the opinion be one that a “fair-minded” person could honestly hold, to a requirement that it one that “anyone could honestly have expressed” (paras. 49-51), which allows for robust debate. As Binnie J. put it, “w[e] live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones” (para. 4).

[166] The Supreme Court also commented on the guarantee of free expression in s. 2(b) of the Charter. At paragraphs 47-51 the following was stated:

47. The guarantee of free expression in s. 2(b) of the Charter has three core rationales, or purposes: (1) democratic discourse; (2) truth-finding; and (3) self-fulfillment: Irwin Toy Ltd. c. Québec (Procureur general), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927 (S.C.C.), at p.976. These purposes inform the content of s. 2(b) and assist in determining what limits on free expression can be justified under s. 1.

48. First and foremost, free expression is essential to the proper functioning of democratic governance. As Rand J. put it, “government by the free public opinion of an open society … demands the condition of a virtually unobstructed access to and diffusion of ideas”: Switzman, at p. 306.

49. Second, the free exchange of ideas is an “essential precondition of the search for truth”: R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697 (S.C.C.), at p. 803, per McLachlin J. This rationale, sometimes known as the “marketplace of ideas”, extends beyond the political domain to any area of debate where truth is sought through the exchange of information and ideas. Information is disseminated and propositions debated. In the course of debate, misconceptions and errors are exposed. What withstands testing emerges as truth.

50. Third, free expression has intrinsic value as an aspect of self-realization for both speakers and listeners. As the majority observed in Irwin Toy, at p. 976, “the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed”.

51. Of the three rationales for the constitutional protection of free expression, only the third, self-fulfillment, is of dubious relevance to defamatory communications on matters of public interest. This is because the plaintiff’s interest in reputation may be just as worthy of protection as the defendant’s interest in self-realization through unfettered expression. We are not talking here about a direct prohibition of expression by the state, in which the self-fulfillment potential of even malicious and deceptive expression can be relevant (R. v. Zundel 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731 (S.C.C.)), but rather a means by which individuals can hold one another civilly accountable for what they say. Charter principles do not provide a licence to damage another person’s reputation simply to fulfill one’s atavistic desire to express oneself.

[167] In Crookes the Supreme Court of Canada held that simply posting a hyperlink to defamatory content does not constitute defamation. Justice Abella stated that a reference to other content is fundamentally different from other acts involved in publication. She stated at paragraph 26:

26. A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not. Even where the goal of the person referring to a defamatory publication is to expand that publication’s audience, his or her participation is merely ancillary to that of the initial publisher: with or without the reference, the allegedly defamatory information has already been made available to the public by the initial publisher or publishers’ acts. These features of references distinguish them from acts in the publication process like creating or posting the defamatory publication, and from repetition.

[168] Justice Abella noted that hyperlinks are, in essence, references. Inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked. She stated the following at paragraphs 29-33 and 36:

29. Although the person selecting the content to which he or she wants to link might facilitate the transfer of information (a traditional hallmark of publication), it is equally clear that when a person follows a link they are leaving one source and moving to another. In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content. (See Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, at paras. 97-102).

30. Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.

31. This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law. This Court has recognized that what is at stake is an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130.

32. Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation. That began to change when the Court modified the “honest belief” element to the fair comment defence in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, and when, in Grant, the Court developed a defence of responsible communication on matters of public interest. These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundational role of freedom of expression in the development of democratic institutions and values (Grant, at para. 1; Hill, at para. 101).

33. Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications. See June Ross, “The Common Law of Defamation Fails to Enter the Age of the Charter” (1996), 35 Alta. L. Rev. 117; see also Jeremy Streeter, “The ‘Deception Exception’: A New Approach to Section 2(b) Values and Its Impact on Defamation Law” (2003), 61 U.T. Fac. L. Rev. 79; Denis W. Boivin, “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation (1996-1997), 22 Queen’s L.J. 229; Lewis N. Klar, Tort Law (4th ed. 2009), at pp. 746-47; Robert Danay, “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” (2010), 56 McGill L.J. 1; the Hon. Frank Iacobucci, “Recent Developments Concerning Freedom of Speech and Privacy in the Context of Global Communications Technology” (1999), 48 U.N.B.L.J. 189; and Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) at p. 870.

36. The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

[169] The plaintiff relies on the comments of the Ontario Court of Appeal in Barrick Gold Corp. v. Lopehandia, (2004) 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (Ont. C.A.) (“Barrick”) with respect to Internet defamation and damages. These comments are set out at paragraphs 28-34 as follows:

28. Is there something about defamation on the Internet – “cyber libel”, as it is sometimes called – that distinguishes it, for purposes of damages, from defamation in another medium? My response to that question is “Yes”.

29. The standard factors to consider in determining damages for defamation are summarized by Cory J. in Hill at p. 1203. They include the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances.

30. In the Internet context, these factors must be examined in the light of what one judge has characterized as the “ubiquity, universality and utility” of that medium. In Dow Jones & Co. v. Gutnick, [2002] H.C.A. 56 (Australia H.C.) (10 December 2002), that same judge – Kirby J., of the High Court of Australia – portrayed the Internet in these terms, at para. 80:

The Internet is essentially a decentralized, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term “cyberspace”. [FN4] This is a word that recognizes that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware [emphasis added].

31. Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: see Vaquero Energy Ltd. v. Weir, 2004 ABQB 68 (CanLII), [2004] A.J. No. 84 (Alta. Q.B.) at para. 17.

32. These characteristics create challenges in the libel context. Traditional approaches attuned to “the real world” may not respond adequately to the realities of the Internet world. How does the law protect reputation without unduly overriding such free wheeling public discourse? Lyrissa Barnett Lidsky discusses this conundrum in her article, “Silencing John Doe: Defamation and Discourse in Cyberspace”, (2000) 49 Duke L.J. 855 at pp. 862-865:

Internet communications lack this formal distance. Because communication can occur almost instantaneously, participants in online discussions place a premium on speed. Indeed, in many fora, speed takes precedence over all other values, including not just accuracy but even grammar, spelling, and punctuation. Hyperbole and exaggeration are common, and “venting” is at least as common as careful and considered argumentation. The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that “anything goes” and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit discourse in the real world. While this view is undoubtedly overstated, certainly the immediacy and informality of Internet communications may be central to its widespread appeal.

Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie”. The problem for libel law, then, is how to protect reputation without squelching, the potential of the Internet as a medium of public discourse [emphasis added].

33. These characteristics differentiate the publication of defamatory material on the Internet from publication in the more traditional forms of media, in my opinion.

34. It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

[170] Finally, I note that I was directed to one case where a court has considered the nature of online message boards. In Smith v. ADVFN Plc & Ors [2008] EWHC 1797 (QB) the plaintiff brought a defamation action in respect of comments left on an Internet bulletin board. A stay of proceeding was subsequently issued and the plaintiff moved to lift the stay. In deciding not to lift the stay, Justice Eady of the High Court of England (Queen’s Bench Division) made a number of observations about bulletin board communications. He stated the following at paragraphs 13-15 and 17:

13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.

14. This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”.

15. The participants in these exchanges were mostly using pseudonyms (or “avatars”, so that their identities will often not be known to others. This is no doubt a disinhibiting factor affecting what people are prepared to say in this special environment.

17. …But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment.

Determination

[171] To prove a case in defamation, a plaintiff must establish only three elements: first, that the words refer to the plaintiff, second, that the words have been published to a third party; and third, that the words complained of are defamatory of the plaintiff, in the sense that the words would tend to lower the reputation of the plaintiff in the eyes of a reasonable person. I turn then to those three elements.

1. The words refer to the plaintiff:

[172] It is the position of the defendants that the impugned words did not refer to Dr. Baglow but to Dr. Dawg, a pseudonym. According to Mr. Fournier it was one person’s pseudonym insulting another person’s pseudonym. There was no reference in “Hey yokels with pitchforks” to Dr. Baglow, until the Ms. Mew comment. If the reader did not know who Dr. Dawg was, there could be no defamation of Dr. Baglow. According to the Fourniers, the plaintiff’s assertion that a reader would take the time to google “Dr. Dawg” was totally speculative.

[173] However, Dr. Baglow (writing as Dr. Dawg) does not attempt to conceal his real identity as John Baglow. He has written some two dozen articles in the National Post Full Comment section from a left-wing perspective, where it is indicated “John Baglow who has been blogging as ‘Dr. Dawg’ since 2005”. Further, he has posted on Rabble (a left-wing version of
Free Dominion) where he has indicated that he is Dr. Dawg. In 2006, Small Dead Animals, a right-wing blog with a very larger readership referred to him as “Dr. Dawg – John Baglow”. In addition, Dr. Baglow was identified as Dr. Dawg in Free Dominion by the Fourniers some ten times prior to the “Hey yokels with pitchforks” post. In fact, Ms. Fournier “outed” Dr. Baglow herself on Free Dominion apparently because she perceived that he referred to her as a Nazi and was angry.

[174] In my view the plaintiff’s position that some commenters and readers of Free Dominion would know that he is Dr. Dawg is supported in the evidence. I am satisfied that the plaintiff has established that the impugned words refer to him.

2. The words have been published to a third party:

[175] In Crookes Justice Abella set out what a plaintiff must establish to prove the publication element of defamation at paragraph 16:

16. To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it (McNichol v. Grandy, 1931 CanLII 99 (SCC), [1931] S.C.R. 696, at p. 699). Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant:

There are no limitations on the manner in which defamatory matter may be published. Any act which has the effect of transferring the defamatory information to a third person constitutes a publication. [Footnotes omitted.]

(Stanley v. Shaw, 231 B.C.A.C. 186, 2006 BCCA 467, at para. 5, citing Raymond E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), at para. 7.3)

[176] The Fourniers concede that they are publishers according to this definition. They state that the forum is the distributor of content generated and posted by third parties, such as Mr. Smith. Mr. Smith is the main or primary publisher, while Free Dominion plays a subordinate role in the dissemination of such user-generated content. They note that publishers in such circumstances have available to them, the defence of innocent dissemination. No such defence has been raised by the Fourniers in this case.

[177] The Fourniers submit that they did not write, edit, modify or in any way participate in the writing or posting of the impugned words or any of the comments in the thread. They submit that they are simply the operators of Free Dominion. It is the message board software that allows users to register. There is no intervention from the operators themselves. Any registered person can post and start a thread.

[178] The Fourniers take the position that holding a message board and its operators liable as publishers for postings by the hundreds of people who post on it daily is an unconstitutional violation of the guarantee of freedom of expression. Operators of forums will be forced to either immediately take down a posting upon complaint or face liability as publishers for writings which they did not write, edit or otherwise have knowledge. Essentially they are requesting this Court to make a finding, as was made by the Supreme Court of Canada in Crookes, that the provider of an interactive computer service should not be liable for user-generated content from third parties.

[179] In support of their position the Fourniers point to the importance of the blogging and message board mediums to the democratic process and the flow of information. The Fourniers submit that holding message board operators liable will have a chilling effect on the flow of information and the freedom of expression and debate. Their concern with respect to the chilling effect of holding message board operators liable was reflected in their evidence. They state that they are not the CBC or the National Post. They should not have to have a battery of lawyers.

[180] The Fourniers submit that this Court has the jurisdiction to make incremental changes to the law that give effect to Charter values, pointing to the Supreme Court of Canada decision in WIC Radio. Reliance is placed on the reasoning of the Supreme Court in Crookes. Message board operators are simply facilitating content being made public. The Fourniers make reference to paragraph 21 of Crookes “…some acts are so passive that they should not be held to be publication”. They note Bunt v. Tilley, [2006] EWHC 407 (GB) a decision of the Queen’s Bench in England which considered the potential liability of an Internet service provider. The Court there stated that in order to hold someone liable as a publisher, “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words” (paragraph 23). The Fourniers submit that like a hyperlink, a message board is content neutral.

[181] In addition the Fourniers refer to the statutory regimes in both the United States and the United Kingdom. The United States enacted the Communications Decency Act, 47 U.S.C., section 230(c)(I) in 1996. The provision states in part:

No provider or use of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

[182] This provision was interpreted by the United States Court of Appeals for the Fourth Circuit in Zeran v. American Online, 129 F. 3d 327 (1997), as providing an absolute immunity from liability for Internet service providers with respect to defamatory online postings.

[183] England and Wales also addressed this issue with recent statutory amendments to the common law. The Defamation Act 2013, Elizabeth II: Chapter 26 came into force on January 1, 2014. It includes a defence for the operator of a website to show that it was not the operator who posted the statement on the website. However that defence would be defeated if it was not possible for the complainant to identify the person who posted the statement, the complainant gave the operator a notice of complaint in relation to the statement and the operator failed to respond to the notice of complaint in accordance with the regulations (section 5(1)(2) and (3))

[184] I note that the CCLA has taken a position on the issue of publication in this litigation that is supportive of the Fourniers. It is the CCLA’s position that, consistent with the Supreme Court’s decision in Crookes, operators and administrators of weblogs, online message boards and similar Internet platforms should not automatically be considered to have published, and therefore held legally responsible for defamatory content created by others. The CCLA points to the dramatic transformation in the technology of communication. Weblogs, message boards and similar Internet platforms have become important vehicles for people to exchange ideas. Holding operators and administrators liable for defamatory content, simply for providing those vehicles, would damage freedom of expression and have a chilling effect.

[185] In Canada, there appears to be only one decision which discusses the liability of online forum owners/operators for defamatory comments posted on their forums. In Carter v. B.C. Federation of Foster Parents Association, 2005 BCCA 398, 257 D.L.R. (4th) 133 the defendant Federation sought a summary judgment dismissing the plaintiff’s claim for defamation arguing, among other things, that the issue was statute-barred. The Federation operated an online forum in which a defamatory posting regarding the plaintiff had been made. After discovering the posting, the plaintiff urged the board of directors of the Federation to shut down the forum as it was being misused. Sometime later, the plaintiff discovered that the defamatory posting had not been removed, although it was within the Federation’s power to do so.

[186] On appeal, the British Columbia Court of Appeal reversed the summary judgment and remitted the matter to trial. An issue before the Court was whether the Federation could be legally considered to be a publisher of the defamatory postings, having not posted them itself. In determining that the Federation was a “publisher” of the defamatory information, the Court of Appeal emphasized that the Federation had obtained actual knowledge of the defamatory posting and that it had been within the Federation’s control to remove the posting. Furthermore, the Court of Appeal held that the defence of “innocent dissemination” would not be open to the defendant, as it would be unable to demonstrate that the publication occurred without negligence on its part, given that it had been notified about the posting and its defamatory nature.

[187] In the course of its reasons the Court of Appeal noted that “legislatures may yet have to come to grips with publication issues thrown up by the new development of widespread Internet publication, to date the issue has not been legislatively addressed…” (paragraph 20). While the Fourniers have asked this Court to consider the above-noted statutory provisions with respect to publication, I am mindful that the legislators in this country have not chosen to enact such legislative schemes. It is the common law of defamation and Charter values which must be considered.

[188] The Fourniers and the CCLA essentially submit that the reasoning in Crookes is applicable to the case hand. However in my view the circumstances are qualitatively different. To compare Crookes to this case is, in my view, to compare apples to oranges.

[189] In Crookes, the Supreme Court looked at whether a simple reference like a hyperlink, without more, to defamatory information is the kind of act that can constitute publication. Justice Abella noted that referencing on its own does not involve exerting control over the content. She stated that communicating something is very different from merely communicating that something exists or where it exists. She stated that the former involved dissemination of the content and suggests control over both the content and whether the content will reach an audience at all, whereas the latter does not.

[190] Justice Abella stated that hyperlinks are simply references. The content of the secondary article can be changed by whoever controls the secondary page. Moreover the person who makes reference to the hyperlink has no control of the content in the secondary article. She stated that hyperlinks share the same relationship with the content to which they refer as do references. They both communicate that something exists, but do not, by themselves, communicate its content. Both require an act by a third party before he or she gains access to the content. Justice Abella emphasized that a hyperlink is content neutral. It expresses no opinion. She went on to state at paragraph 40:

40. Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory (Collins, at paras. 7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).

[191] Justices McLachlin and Fish, in joint concurring reasons, follow up on this point. A hyperlink may, in certain circumstances, amount to a publication of defamatory material where the reference to the hyperlink is not “content neutral”. At paragraph 48 the following is stated:

48. Abella J. concludes that “[o]nly when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker” (para. 42). In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances. Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent web site that later becomes defamatory would not be liable.

[192] It is the position of the Fourniers that the simple provision of software to enable a message board or forum is equivalent to the provision of a hyperlink. The message board itself, the software, is content neutral. In my view this position is disingenuous and ignores reality. A message board or forum is set up precisely to provide content to its readers. Its whole purpose is to provide content.

[193] The Fourniers are the moderators and administrators of Free Dominion. They decided to set up a politically conservative venue in 2001 on the Internet. It is a message board. The purpose of the Free Dominion message board is to allow conservatively minded individuals to voice their opinions. Its home page states that it is “The Voice of Principled Conservatism”. Members discuss political issues from a conservative point of view. The Fourniers are not mere passive bystanders. They make posts themselves and participate in threads.

[194] Moreover, as moderators and administrators, the Fourniers have the ability to control content on Free Dominion. Prior to 2014, anyone could become a member and post or comment by registering on Free Dominion. Potential members were required to accept the terms of service (the site rules). Ms. Fournier testified that terms of service basically required members to “play nice”, use family friendly language and keep debate civil. The Free Dominion Registration Form stated “You agree not to post any abusive, obscene, vulgar, slanderous, hateful, threatening, sexually orientated or any other material that may violate any laws...Doing so may lead to you being immediately and permanently banned…” Further it stated, “You agree that Free Dominion have the right to remove, edit, move or close at any time should we see fit.”

[195] Ms. Fournier testified that while Free Dominion is set up as a conservative message board, they do want the left-wing to comment/post and debate. The Fourniers pride themselves on not banning people for their political views. She testified that as moderators, the defendants had the ability to delete posts and comments from the message board but did so rarely. The ethos of the message board and its members was that open discussion was better than deletion and that deletion was only to be a measure of last resort. She stated that on Free Dominion they had a policy not to interfere in arguments between pseudonymous posters or commenters by deleting posts or comments and banning people. If negative comments were made about someone using his or her real name, the Fourniers tried to encourage posters to resolve their differences, but they investigated the situation more closely and deleted the comment or banned the poster if they felt it was necessary. I find it interesting to note Ms. Fournier’s comment that if Ms. Mew had not turned out to be Dr. Baglow, she would have removed that post because it identified him.

[196] In my view the reasoning in Crookes is not applicable to the circumstances that present in this case. Moreover I am mindful, as indicated in the Supreme Court of Canada case law set out above, that the law of defamation involves a delicate balance between two fundamental values: the worth and value of an individual’s reputation, which the law of defamation seeks to protect, and the freedom of expression, which the law of defamation inherently limits. The evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance. Therefore I find the impugned words to have been published by both the Fourniers and Mr. Smith.

3. The words complained of are defamatory of the plaintiff:

[197] As set out above, in order to succeed in a defamation action a plaintiff is required to prove that the words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. In Crookes, the Supreme Court noted that defamatory meaning may be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented” (paragraph 39). This trial, and the submissions of the defendants and the CCLA, very much focused on the issue of context.

[198] The defendants refer to a number of principles set out by Professor Brown in Defamation Law: A Primer (2nd ed.) in determining whether words are defamatory:

a) Meaning is the life of language and a false and defamatory meaning is the essence of a claim for defamation. Whether the words are reasonably capable of a defamatory meaning is the threshold inquiry in every action for libel and slander. In order to be actionable, a publication must be reasonably understood in a defamatory sense by those to whom it is published. (p. 47)

b) To be defamatory, the publication must convey some degrading imputation. The question is whether the publication has the tendency to blacken, harm, injure, disparage or adversely affect the reputation of the plaintiff. Does it diminish or lower the opinion, esteem or regard which others have for him, or cause him to be detested or despised, or degrade and disparage him in the eyes of others, or excite adverse or derogatory feelings and opinions about him, and cause him to be shunned and avoided? (p. 29-30)

c) A defamatory communication must be viewed contextually. Words, like people, are judged by the company they keep. Therefore, they must be examined and construed in context and not in isolation. A statement may contain entirely different meanings depending upon the context in which it is used. The language must be given a fair reading in the context of the publication as a whole. (p. 54)

d) The nature of the audience to whom the words are addressed is an important part of the context. It may affect the way in which words…are perceived and understood. (p. 57)

e) The publication must be considered as a whole; a court will not dwell or concentrate on isolated passages in determining whether it is defamatory. It is the broad effect that counts. (p. 57)

f) The defamatory meaning must be objectively determined by reference to the ordinary reasonable person. The court must discover the meaning that the words are fairly calculated to produce or the impression they would engender in the minds of ordinary and reasonable persons. The test…is whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense. It is the fair and natural meaning given to the words by a reasonable person of ordinary intelligence, drawing on his own knowledge and experience of human affairs. (p. 59)

g) Newspapers, magazines, television, radio, motion pictures and books pose special problems in determining defamatory sense. Where newspapers and magazines are involved, a court will not confine itself to the plain text but will consider its composition, syntax and context, the prominence of its placement in the publication, the positive or negative thrust of the article, any material factual omissions or distortions, and any other facts that reflect upon the author’s intent and purpose. Attention must also be paid to any display lines, the layout of the article, the headline that accompanies it, and any graphic language employed to create a strong impression as an attraction to the reader. (p. 68)

[199] The defendants submit that the context in this case is such that the reasonable reader would not think less of the plaintiff as a result of the impugned words. The defendants note that the words were published on a political message board, the purpose of which is to allow people to voice their opinions on politics and social issues, generally from a conservative viewpoint. Further, it is the position of the defendants that readers do not expect to obtain hard news on a political message board but a discussion of current events that are ongoing. The plaintiff himself did not do investigative factual reporting on “Dawg’s Blawg” but commented on topical current events. The defendants note the plaintiff’s testimony that people wanted “strong commentary”. The environment of both Free Dominion and Dawg’s Blawg is hyper-partisan, where political opinion is freely expressed. People want the opportunity to opine on various topics and enter into exchanges.

[200] The defendants submit that the impugned words were opinion. They were published in a Free Dominion forum entitled “Opinions are Like Clymers…” alerting readers that the post was an opinion. The title, “Hey yokels with pitchforks, there is no libertarian base” was vague and confusing with no reference to the plaintiff, also alerting readers that what followed was commentary. The defendants further note the context of the impugned words is the fast-paced, hyperbolic world of political blogging and message boarding. The plaintiff himself testified that the medium is one where people speak in a manner that is “very forthright”, “rude”, “vulgar”, “confrontational”, with “strong language”, “sarcasm”, “name calling” and “hyperbole”. The defendants submit that a reasonable reader would realize that Mr. Smith was reacting emotionally to the plaintiff’s rancorous attack not only on the Harper government, but also its supporters.

[201] In addition, the defendants point to the plaintiff’s repeated testimony that the entire post that contained the impugned words was “incoherent”, “wooly ranting”, “ranting”, “running off at the mouth” and “silly”. Given that the entire point of defamation law is to determine the meaning and effect of words, the defendants submit that an incoherent post cannot have any meaning and therefore cannot defame the plaintiff.

[202] The CCLA also submits that the broader context is relevant to determining the meaning of the impugned words. It refers to the “rough and tumble” nature of political discourse on the Internet, where sarcasm, hyperbole, profanity, insults and other forms of invective are typical and personal attacks are not uncommon. Dr. Baglow acknowledged that he expects a certain amount of sarcasm, hyperbole and bad language, and from time to time has engaged in it himself. Dr. Baglow referred to Godwin’s Law.

[203] The CCLA notes the evidence of Dr. Elmer, where he referred to a study of 260 weblogs (not all of which were political) in the United States which found that 42% used sarcasm, 42% used irony and 14% used offensive language. Dr. Elmer stated that these forms of communication would be even more prevalent on partisan political weblogs. Dr. Elmer’s report also stated that “[m]any sites have long histories of…sometimes engaging in harsh language and personal attacks”. Further, “‘community’-based sites…can witness sharper exchanges as individuals seek to cultivate a more visible online presence and reputation”. Dr. Elmer noted that Free Dominion is precisely the type of community-based site at which such sharper exchanges could occur.

[204] In addition the CCLA notes the comment in Dr. Elmer’s report that “blogger discourse tends to focus more on argument, opinion, sarcasm and questions”. In his testimony Dr. Elmer confirmed that hyperbole, profanity and personal attacks can be added to this list, and that online actors also frequently compare their opponents’ viewpoints to those of odious historical figures. He also agreed that all these forms of communication are even more likely to be used on the more partisan political weblogs and message boards.

[205] The CCLA submits that both participants and frequent readers would be aware of all of this and would not be surprised to see this sort of language on a political weblog or message board. Frequent readers, according to Dr. Elmer, would include not only those who frequently read the weblog or message board in question, but also those who read these types of media more generally.

[206] I am very mindful that political discourse on weblogs and message boards, particularly those which are hyper-partisan, is qualitatively different than political discourse in more “traditional” media like newspapers and television. This is well illustrated when one compares the blog post that Dr. Baglow wrote concerning the Honourable Mr. Justice Victor Toews (who was then the Federal Minister of Public Safety) to the “Full Comment” piece that he wrote on Justice Toews in the National Post. In the blog post, Dr. Baglow stated that “Toews distinguished himself with petty acts of cruelty and an ill-concealed liking for torture” and is a “seasoned bigot and devotee of sudo-politics at its least refined”.

[207] I am also mindful that this Court must consider the context in which the words were used and the audience to whom they were published. However, it seems to me that taking the submissions of the CCLA and the defendants to their logical conclusion, little, if anything, could be found to be defamatory on partisan weblogs and message boards. Implicit in their submissions is that based on the rough and tumble nature of these media platforms there would be little, if anything, that would tend to lower the plaintiff’s reputation in the eyes of a reasonable reader. However, there is nothing in the law of defamation to suggest that that is the case.

[208] To the contrary, and in this regard I refer to WIC Radio, where in the context of a “shock jock” radio show, the defendant Mair compared the plaintiff Simpson to Hitler, the Ku Klux Klan and skinheads. The comparisons implied that Simpson (who opposed any positive portrayal of a gay lifestyle) would condone violence toward gays. Justice Binnie noted that Mair’s listeners expect to hear extravagant opinions and, according to his counsel, discount them accordingly. Yet even in the context of a “shock-jock” radio show, where listeners would have that understanding and those expectations with respect to the opinions expressed, the trial judge and eight of the nine judges of the Supreme Court of Canada had no difficulty in concluding that Mair’s statements were defamatory.

[209] A number of submissions were made by the defendants about what reasonable readers of Free Dominion would think about the impugned words. (For example, that a reasonable reader would realize that Mr. Smith was reacting emotionally to the plaintiff’s attack on the Harper government and its supporters). However Free Dominion had some 3,000 visitors a day. Visitors would include anyone who came on the site to look (lurkers). Of the 3,000 Ms. Fournier estimated that here were between 100 to 300 commenters a day. While it may be easier to discern the views and sensibilities of those who come on the site and comment, it is difficult to discern much about those who simply lurk.

[210] In fact, Dr. Elmer confirmed in his evidence that it is common to have large numbers of individuals visit and/or read posts/comments on discussion boards and blogs without ever posting anything. He agreed that it is difficult to determine the characteristics of lurkers. While he had conducted some surveys of readers and had some experiential knowledge of them and their opinions, it was not possible for him to make general reliable scientifically objective conclusions about who they generally are and how or what they think.

[211] Further, Dr. Elmer indicated that personal attacks were not uncommon on the Internet especially among those who engaged in political discussions. However, he stated that researchers debate the perception of such attacks. He noted that there is little empirical research or surveys on this topic. While one researcher, Dr. Michael Keren, argues that personal attacks are frequent, expected and calculated (with respect to anonymous actors), Dr. Elmer’s research pointed to a more nuanced interpretation. He stated that many people are still shocked by personal attacks.

[212] Prior to hearing the evidence in this case it would have been intuitive to me that people do not believe what they read on the Internet as compared to mainstream media and that people do not lend credibility to those who post anonymously. However, Dr. Elmer’s evidence indicated otherwise. Credibility for online anonymous political actors can be gained over time. It is to be noted that Mr. Smith has a long history of posting on Free Dominion as Peter O’Donnell and would be well known to its regular readers.

[213] Much of the defendants’ evidence concerning context would have greater weight with respect to whether the impugned words were defamatory if those words took place in the context of a heated debate between Dr. Dawg and Peter O’Donnell in a thread. Instead, the impugned words almost stand alone in a post focusing mostly on other issues. Further, there is no evidence that Dr. Dawg ever posted on Free Dominion. While Dr. Elmer stated that debate on specific topics and among particular actors can easily move from one platform to another, such debate may not be apparent to a broader audience unless it was clearly noted. There is no reference in the post “Hey yokels with pitchforks, there is no libertarian base” to any previous debate between Dr. Dawg and Peter O’Donnell on any platform, with respect to Omar Khadr. While Dr. Elmer opined that if a commenter challenges the opinion of a blogger, people are waiting to see and expecting a rejoinder, no such expectation could exist in the circumstances of this case. Dr. Dawg had never posted on Free Dominion at all, let alone engage with Peter O’Donnell on the site.

[214] The test which must be applied in this case in whether the impugned words would tend to lower Dr. Baglow’s reputation in the eyes of a reasonable person (emphasis added). The test has often been construed as setting a low threshold for establishing prima facie defamation (WIC Radio, paragraph 68). The impugned words referred to the plaintiff as “one of the Taliban’s more vocal supporters”. Obviously, these words are reasonably capable of bearing the meaning that Dr. Baglow is or was a supporter of the Taliban. As the Taliban would be viewed by a reasonable person as an Islamist terrorist organization that engages in odious acts, the words are also reasonably capable of bearing the meaning that Dr. Baglow supports Islamist terrorism. The words were published at a time when Canadian Armed Forces were engaged in armed conflict with the Taliban in Afghanistan. The impugned words could reasonably mean that Dr. Baglow has given explicit vocal support to the enemies with whom Canada is at war. The words are defamatory as they would tend to lower Dr. Baglow’s reputation in the eyes of a reasonable person.

[215] In summary, I find that the plaintiff has established all three elements with respect to his claim for defamation.

[216] In submissions the Fourniers raised what they termed a technical argument that Dr. Baglow failed to prove the defamatory meanings as pleaded. In paragraph 8 of the Statement of Claim, the following was pleaded:

The Plaintiff states that the above statement and other statements made prior to, and subsequent to, were false and seriously defamatory of the Plaintiff. The Defendant’s statements, in their plain and ordinary meaning, including the express and implied meanings in the full context of the respective comments and debates, meant the Plaintiff is or was a supporter of the Taliban and that the Plaintiff supports Islamist terrorism and is a participant in hostilities against The Canadian Forces.

[217] The Fourniers note that the impugned words do not have the meaning pleaded by Dr. Baglow. More particularly, it is their position that he has not pleaded meanings in the alternative but has pleaded a very extended meaning having three branches, “supporter of the Taliban” and “supports Islamist terrorism” and “is a participant in hostilities against the Canadian Forces”. The Fourniers note that Dr. Baglow testified that he does not believe that the words mean that he is a participant in hostilities against The Canadian Forces. The Fournier’s rely on Lawson v. Baines 2011 BCSC 326, 34 B.C.L.R. (5th) 363 (“Lawson”) in support of their position.

[218] After this submission was made Dr. Baglow requested an amendment of paragraph 8 of the Statement of Claim to plead in the alternative. Counsel for Dr. Baglow relied on appellate jurisprudence which indicates that pleadings can be amended even at the stage of closing submissions provided that there is no prejudice to the defendants which cannot be compensated by costs. It is submitted that no prejudice was suffered by the defendants.

[219] I agree. This was an eleven-day trial. There was extensive examination and
cross-examination of Dr. Baglow. He testified at length about what his concerns were with respect to the impugned words. There was no surprise and the defendants have not demonstrated that they would have adduced any other evidence had paragraph 8 been pleaded in the alternative. They have not demonstrated any prejudice whatsoever. The amendment is therefore granted.

[220] In addition it is my view that the Lawson case does not stand for the proposition that a plaintiff is strictly locked in to every word pleaded in a defamation action. At paragraph 35 it is indicated that a plaintiff must prove with respect to inferential meanings, on a balance of probabilities, that the words bear those meanings or meanings substantially similar.

The Defence of Fair Comment

[221] Having found the impugned words to be defamatory, I turn to the defence of fair comment. As set out above, to establish that defence, a defendant must prove that: (1) the comment is on a matter of public interest; (2) the comment is based on fact; (3) the comment, though it can include inferences of fact is recognizable as comment; and (4) any person could honestly express that opinion on the proved facts. A plaintiff can however, defeat the defence by proving that the defendant was actuated by express malice.

[222] It is the position of the defendants that the defence has been engaged in this case and that Dr. Baglow has failed to prove that they were actuated by express malice. Dr. Baglow submits that the impugned words are not comment but instead a direct factual statement of what Dr. Baglow is. Further it is submitted that there is no factual foundation for the statement that Dr. Baglow supported the Taliban. It is submitted that the evidence points to the contrary. Dr. Baglow gave evidence at trial that he views the Taliban as an odious, political, jihadist extremist group, a murderous bunch of theocrats, practicing an extreme form of brutality and he referred to a number of blogs that he wrote critical of the Taliban.

1. The comment is on a matter of public interest:

[223] The first element is easily met in this case. The impugned words concerned a matter of public interest that is, the well-known and controversial case of Omar Khadr and the extent to which legal rights should be extended to him. Canadian public opinion was generally split on this issue as evidenced by an Angus Reid Public Opinion Poll from February 2008 (Exhibit 6, Tab 19). The question posed was whether the Canadian government should actively intervene to secure Omar Khadr’s release. The results indicated that 41% agreed, 41% disagreed and 18% were not sure. Dr. Baglow himself recognized the Omar Khadr case as being one of public interest by writing extensively about it. In cross-examination he agreed that the Omar Khadr case and the war in Afghanistan were matters of great public interest.

2. The comment is based on fact:

[224] There are a number of notorious facts with respect to Omar Khadr. It would have been well known that Khadr, a Canadian, had been detained by United States Forces since 2002 at Guantanamo Bay, Cuba, where he faced murder and other terrorism-related charges. Mr. Khadr was taken prisoner in 2002 in Afghanistan as part of military action taken against the Taliban and Al Qaeda forces after the September 11, 2001, terrorist strikes in the United States. He was fifteen years old at the time. The United States alleged that near the end of the battle at which he was taken prisoner, Mr. Khadr threw a grenade which killed an American soldier (This factual background was referred to by the Supreme Court of Canada in Canada (Justice) v. Khadr 2008 SCC 28, [2008] 2 S.C.R. 125).

[225] The evidence also indicates that Dr. Baglow wrote extensively on the Omar Khadr case, prior to August 2010. At Tab 17 of Exhibit 6, Dr. Baglow set out some 42 posts from Dawg’s Blawg, written from 2008-August 2010, prior to the impugned words being published, touching on the Taliban and Omar Khadr. Dr. Baglow testified about his view on Omar Khadr. It is and was his view that Omar Khadr is a Canadian citizen and a child soldier. He should have been repatriated to Canada and treated in accordance with International Law and the United Nations Rights of the Child Optional Protocol. Child soldiers should be rehabilitated and reintegrated into society. Dr. Baglow also testified that he was not a supporter of Canada’s mission in Afghanistan and referred to several Dawg’s Blawg posts in this regard. In
cross-examination Dr. Baglow agreed that he wrote a lot about Omar Khadr and the war in Afghanistan. His views would have been well-known in the political blogosphere.

[226] In WIC Radio, Justice Binnie noted that the facts giving rise to the general dispute between Mair and Simpson were well known to Mair’s listening audience. It was found that Simpson’s views had a measure of notoriety and were publically known. A similar finding can be made with respect to Dr. Baglow’s views on Omar Khadr. Dr. Baglow was notoriously known for taking the position that Omar Khadr should be repatriated to Canada and treated in accordance with international law.

3. The comment, though it can include inferences of fact is recognizable as comment:

[227] It is Dr. Baglow’s view that the impugned words are not comment but are simply a statement of fact. It is submitted that the impugned words stand alone, framed in the present tense and are concrete.

[228] In determining whether the impugned words amount to a statement of fact or a comment I am mindful of the dicta of Justice Binnie in WIC Radio at paragraph 26. A comment includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”. Further, he noted that there is ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. He stated:

This is particularly so in an editorial context where loose, figurative or hyperbolic language is used in the context of political debate, commentary, media campaigns and public discourse. (citations omitted)

[229] In determining whether a statement is a comment, the Court must consider the context in which the impugned words appear. In Brown on Defamation, 2nd ed., loose-leaf (Toronto: Carswell, 1999) the following was stated at pages 15-47 and 27-477 to 27-479.

In determining whether a statement is comment, the words about which the plaintiff complains must be construed as a whole. The court must examine the totality of the circumstances and the context in which the remark was made, including the language used, the medium in which it was circulated, any cautionary terms that were used, and the audience to whom it was published.

In determining whether a statement is an expression of fact or opinion, a court will consider the communication as a whole, and the context in which it was used. The totality of the circumstances and the context in which it occurs must be examined. This includes both the immediate context and the broader social context and surrounding circumstances in which the statement is made. “Context can be determinative that a statement is opinion and not fact, for the context of a statement may control whether words were understood in a defamatory sense”. What might appear on its face to be a statement of fact may, when considered in context, be mere rhetorical hyperbole and not intended to be understood in a literal sense. Such loose, figurative or hyperbolic language may negate the impression that the publisher was stating facts about the plaintiff.

[230] Turning to the context in this case, the impugned words were found in a post on an online political message board established to allow people to voice their opinions on political and social issues, generally from a conservative viewpoint. Free Dominion is called “The Voice of Principled Conservativism”, a title which appears on every page. There is ample evidence in the record to establish that Free Dominion was a place where participants exchanged (and visitors read) their often strongly worded opinions. Strong commentary is clearly evident in the Free Dominion posts and comment threads before the Court. Opinions would be set out in a post on various issues and those who choose to do so would counter with opinions of their own in the thread. Debate ensued.

[231] The post “Hey yokels with pitchforks, there is no libertarian base” was found in the Free Dominion subforum entitled “Opinions are Like Clymers” (“Clymer” has been defined to mean asshole), thus clearly indicating to readers that the post would contain opinion. The title of the post was vague and confusing and so would also alert readers that what followed was a commentary and not a factual dissertation. The post itself was rambling if not incoherent, touching on a number of different topics. It was in essence a rant, with Mr. Smith giving his views and opinions on any number of issues, none too clearly. Mr. Smith was railing against cultural elites, Bay and Bloor Street, scientists who believe in global warming, Torontonians, Liberals, the Mark Steyn human rights case, the census, the CBC, and elitists in Ontario. He spoke of a culture war and Western separatism. The post looked at as a whole was clearly commentary.

[232] While the impugned words appear to stand alone in the midst of what can only be termed a rant, there is some reference later in paragraph 8 to “TRAITORS” and “TREASON”, and Omar Khadr. This reference was clearly commentary. Further, the words “one of the Taliban’s more vocal supporters” (emphasis added) supported that this was commentary. It is a statement that is incapable of proof. As stated in WIC Radio what might appear on its face to be a statement of fact may, when considered in context be more rhetorical hyperbole.

[233] An analogy can be drawn here to WIC Radio. In WIC Radio, Mair’s imputation that Simpson “would condone violence against gay people” was held to be a comment, not an imputation of fact. Mair was a radio shock jock with opinions on a variety of matters and not a reporter. In the circumstances, a reasonable listener would have recognized the imputation as comment.

[234] While in isolation the impugned words might appear to be a statement of fact, in pith and substance, in context, they must properly be construed as comment. I have come to this conclusion without consideration of the comments in the thread which followed. I note this because of Dr. Baglow’s assertion that people do not read the comments in threads (As an aside, this assertion was not supported in the evidence. The evidence clearly established how important comments are to online political actors. This is where debate rages). Mr. Smith’s comments in the thread would further support the finding that the impugned words must be construed as comment.

4. Any person could honestly express the opinion on the proved facts

[235] In WIC Radio the Supreme Court stated that the test is whether anyone could honestly have expressed the defamatory comment on the proven facts. The addition of a qualitative standard such as “fair minded” was rejected. Binnie J. quoted with approval from a decision of the High Court of Australia in Channel Seven Adelaide Pty. Ltd. v. Manock (2007), 241 A.L.R. 468 at paragraph 3:

The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, “fair” does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word “fair” refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts. (emphasis added)

[236] Justice Binnie also referred to the dissent of Justice Dickson in Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] 1 S.C.R. 1067. He stated the following at para. 40:

“Honest belief”, of course, requires the existence of a nexus or relationship between the comment and the underlying facts. Dickson J. himself stated the test in Cherneskey as "could any man honestly express that opinion on the proved facts" (p. 1100 (emphasis added)). His various characterizations of "any man" show the intended broadness of the test, i.e. “however prejudiced he may be, however exaggerated or obstinate his views” (p. 1103, citing Merivale v. Carson (1887), 20 Q.B.D. 275 (C.A.), at p. 281). Dickson J. also agreed with the comment in an earlier case that the operative concept was “honest” rather than “‘fair’ lest some suggestion of reasonableness instead of honesty should be read in” (p. 1104).

[237] Justice Binnie concluded at paragraph 62:

The trial judge did not explicitly apply the “objective honest belief” test to the imputation that Simpson “would condone violence”. In my view, however, having regard to the trial judge's reasons as a whole, and considering both the content of some of Simpson's speeches already mentioned, and the broad latitude allowed by the defence of fair comment, the defamatory imputation that while Simpson would not engage in violence herself she “would condone violence” by others, is an opinion that could honestly have been expressed on the proved facts by a person “prejudiced ... exaggerated or obstinate [in] his views”. That is all that the law requires.

[238] What constitutes “support” can be a wide variety of things. For example, it can mean actual material support or giving aid and comfort to an enemy. The impugned words might be taken to mean that Dr. Baglow’s views are tantamount to making common cause with the Taliban. They might also be taken to mean that if his views were given effect the Taliban would be emboldened or encouraged in their cause. An analogy can be drawn here to Jane Fonda’s anti-Vietnam war stance and that it emboldened the North Vietnamese in their cause. It was Mr. Smith’s honestly held belief, articulated by him on several occasions, that support for Omar Khadr, who was fighting in Afghanistan against the United States amounted to support for the Taliban. I note that others expressed similar views in the comments section to the blog “The Gitmo Kanga-ruse”.

[239] While it may not be reasonable to assert that because someone believes that Omar Khadr is entitled to Charter or International Law protections that person supports the Taliban, the test is not whether the opinion is reasonable. In my view the test that is, whether anyone could honestly have held the view that support for Omar Khadr could be seen as support for the Taliban, has been met.

[240] As an aside, I note that Dr. Baglow resorted to similar reasoning in his blog post “Enabling Bigotry”. In this blog he criticized the CCLA for intervening in the Boisson case to support Charter rights. He stated that the CCLA intervened in and warmly welcomed an Alberta Court of Appeal’s ruling that “in essence upheld the right of bigots to spew homophobic propaganda in the local press”. Dr. Baglow testified at trial that he viewed the CCLA as enabling hate. He stated in his post:

The CCLA stands with the bigots, not with their victims. The rights of homophobes come first. As such, the organization is a willing accomplice in homophobia.

[241] In summary, I find that the defence of fair comment has been established in the circumstances of this case.

Malice:

[242] The defence of fair comment can be defeated by a plaintiff by proving that the defendant was actuated by malice. The case law is clear that a court must find that malice was the dominant motive for the offending publication. The trial judge in WIC Radio (Simpson v. Mair and WIC Radio Ltd.,2004 BCSC 754, 31 B.C.L.R. (4th) 285) refused to find that Mair had acted maliciously, a finding that was never appealed. She stated at paragraphs 78-85:

78 In my view, there is ample evidence of intrinsic malice in this case. "Unwholesome virulence" describes the language of the editorial, with such words and phrases as "menace", "mean spirited", "power mad", "rabble rousing" and "dangerous bigot". What is most offensive about the above-mentioned words "menace" and "dangerous bigot" is that they "bookended" the comparisons with Hitler, the Ku Klux Klan and skinheads, among others. Such language was totally unwarranted given the purpose of the parents' rally and the speech made by Simpson.

79 The language of the editorial as a whole, demonstrates intrinsic malice along with more minor issues, such as Mair's persistent public offence at Simpson's private letter.

80 There were earlier editorials which contain some of the virulent language in this editorial but none as overwhelming in its virulence as the editorial complained of.

81 In determining whether malice can defeat fair comment, the law cautions that the court must be able to find that malice was the dominant motive for the offending editorial.

82 The New Brunswick Court of Appeal decision in Ross, supra at paras. 113-116, malice sufficient to undermine the defence of fair comment was rejected, even though the defendant had admitted to hating Ross' writing, had made "profane and denigrating" remarks about Ross and had showed a very savage cartoon.

83 The court quoted with approval from Brown, supra:

It is the Defendant's primary or predominant motive in publishing the defamatory remark that is determinative. 'Incidental gratification of personal feelings is irrelevant." ... Dislike and ill will may be present but actual malice may be entirely wanting. The fact that a defendant is annoyed, or dislikes the plaintiff, or even contemptuous of him, and takes special delight in offending or embarrassing him, and pleasure in the effect of the publication, or that he was angry and rude, or indignant and resentful, and welcomed the opportunity to expose him, will not defeat a privilege if it is otherwise exercised for a proper purpose.

84 Having considered all the evidence put forward in oral and written submissions on the issue of malice, although I have not attempted to set out all of the arguments and evidence that was put before the court, and having found that Mair was, in fact, actuated by malice, I am unable to find that that this was his predominant or primary motive in publishing the defamatory editorial. I consider that Mair was on a "campaign" to expose what Mair believed were Simpson's "irresponsible" statements and speeches against the teaching of tolerance of a homosexual lifestyle in public schools. This, together with the overall content of the defamatory editorial, is evidence supporting a finding that the dominant motive for publishing the editorial was Mair's honestly held opinion. That opinion was that the position taken by Simpson publicly in support of a movement to resist the legitimizing of a homosexual lifestyle, whether taught in schools or in relation to society in general, was a campaign which he considered dangerous to values which he espoused. This was and is an issue of public concern about which reasonable debate is important.

85 Thus, the defence of fair comment cannot be defeated by the malice which I find actuated the specific language used by Mair.

[243] Although the finding regarding malice in WIC Radio was not appealed to the Supreme Court of Canada, Justice Lebel made the following comment at paragraph 106:

The requirement that malice be the dominant motive for expressing an opinion in order to defeat fair comment helps maintain a proper balance between protecting freedom of expression and reputation. Arguments between ideologically-opposed participants in a public debate often breed bitterness, but such debate remains valuable and worthy of protection in a democratic society.

[244] Dr. Baglow has not raised malice as against Mr. Smith. However, three separate allegations are said to support a finding of malice against the Fourniers:

1) The Fourniers refused to retract the offending post and did not respond to the request to do so.

2) Instead they answered with two posts on Free Dominion:

- “FD gets liable notice, but something has that Wet Dawg Smell”, (August 12, 2010) authored by Connie Fournier

- “John Baglow puts on hid frilliest internet dress” (August 12, 2010) authored by Mark Fournier

3) The allegations they made with respect to spoliation.

[245] In my view these allegations, even taken together, do not support that malice was the dominant motive for the publication. Firstly, the Fourniers took the time to investigate the request for a retraction. A number of reasons were articulated for their decision not to retract the post which are not indicative of malice. Ms. Fournier testified that if anyone was interested in the reputation of Dr. Baglow, he or she could google Dr. Baglow. Mr. Smith’s post would not appear in the results as Dr. Baglow’s name was not in the post. Ms. Mew’s post concerned her however because it brought Dr. Baglow’s real name into the discussion. If Ms. Mew had not turned out to be Dr. Baglow, Ms. Fournier would have removed that post because it identified him. It was her opinion at this point that Dr. Baglow was not genuinely interested in his reputation at all. Mr. Fournier testified that he felt that they were being played and that Dr. Baglow was trying to bully them. In retrospect, Dr. Baglow testified that he regretted the Ms. Mew post.

[246] Ms. Fournier also testified that she saw the post and found it to be part of an ongoing debate between Dr. Baglow and Mr. Smith. They decided to leave the post up because Dr. Baglow had allowed Mr. Smith to write similar things on Dr. Baglow’s own blog. In addition, the comment concerned a matter of public interest and in the Fourniers’ opinion it seemed like a typical fair comment on a political message board. Ms. Fournier also considered the nature of Dr. Baglow’s own posts and comments about others.

[247] With respect to the two posts referred to above “FD gets liable notice, but something has that Wet Dawg Smell” and “John Baglow puts on his frilliest internet dress”, it seems obvious to me that the Fourniers were reacting to the use of the Ms. Mew “sock puppet” which they viewed with some legitimate concern. While the language used indicated their concern and was strong, its dominant motive was not malicious. The picture of Dr. Baglow in drag in Mr. Fournier’s was “pure internet snark” similar to posting a photo of Prime Minister Harper with a crown and “P.M.” necklace in the Dr. Dawg post “Off with his head”. Further, in tone and content it is not dissimilar to anything Dr. Baglow has written about the Fourniers. It is Dr. Baglow who referred to them a “numpties”, called Ms. Fournier “Free Dominatrix” and Mr. Fournier’s “equally thick wife” and stated in “Hadjis v. Hadjis” that anyone wanting to find Nazis should try going through Ms. Fournier. Dr. Baglow also posted a picture of the Fourniers’ receiving the George Orwell Free Speech Award in 2009, with the notation that past previous honourees included holocaust deniers Ernst Zundel, Malcolm Ross, David Irving and James Keegstra, about half a dozen times.

[248] Finally, with respect to the Fourniers pursuing the issue of spoliation, it is understandable that their suspicions would have been initially aroused by the fact that on March 30, 2011, when preparing their Statement of Defence they were able to view the old comments on Dawg’s Blawg but were unable to do so on April 3, 2011. There is not a lot of trust between these parties. Thus the plaintiff has not proven that malice was the dominant motive for the publication.

[249] In summary, for the reasons set out above I find the impugned words to have been defamatory. However the defence of fair comment has been made out. The plaintiff’s claim is therefore dismissed.

Costs:

[250] I turn now to the issue of costs. Both sides were successful and unsuccessful. While I accepted the plaintiff’s claim that the impugned words were defamatory, the defendants successfully asserted the defence of fair comment. The Fourniers did not succeed in their assertion that they should not be found to be publishers for purposes of the law of defamation. The claim of spoliation was not accepted and I note that significant trial time was expended with respect to this issue. Both sides made allegations of malice against the other and again significant trial time was expended with respect to this issue, but I made no findings of malice.

[251] I note that both sides adopted a “no holds barred” approach to this litigation. A trial that was scheduled to take three days took 13 days. It was obviously a matter of principle to all involved. In addition both sides advised the Court throughout the trial that this was a case of first impression. They could point to no case in Canada which dealt with the issue of Internet defamation in the political blogosphere. The parties advised that they view the case as precedent setting and political bloggers require and are waiting for the guidance of the Court. I was left with the clear impression from both sides that guidance from the Court with respect to the application of the law of defamation to the political blogosphere, where debate can be caustic, strident, vulgar and insulting, is required. Because of the issues involved the CCLA sought and was granted intervenor status. There is a public interest element to this litigation.

[252] Further, the Court of Appeal indicated in the appeal of the decision of Justice Annis on the motion for summary judgment in this matter, that the issues that present in this case arise in the novel milieu of Internet defamation in the political blogosphere. The Court of Appeal questioned whether different considerations apply in determining whether a statement is or is not defamatory in this milieu. It noted that these issues have not been addressed in the jurisprudence in any significant way and that the responses may have far-reaching implications.

[253] In my view, in these circumstances, it is appropriate that both sides bear their own costs in this matter. The costs incurred with respect to Dr. Elmer will be split, half to be paid by the plaintiff and half to be paid by the defendants as previously ordered.

[254] Finally, I thank all involved for their assistance and thoughtful submissions.

3.2.5. Hugh Stephens, "Did Canada Get "Section 230" Shoved Down its Throat in the USMCA?" [READ up to the heading "Section 230 is Dangerous"]

Hugh Stephens, "Did Canada Get "Section 230" Shoved Down its Throat in the USMCA?" [READ up to the heading "Section 230 is Dangerous"]

3.2.6. World Intermediary Liability Map, Summary of EU E-Commerce Directive Provisions on Intermediary Liability [READ ALL]

World Intermediary Liability Map, Summary of EU E-Commerce Directive Provisions on Intermediary Liability [READ ALL]

3.2.7. Center for Democracy and Technology, "Overview of the NetzDG Network Enforcement Law," [READ ALL]

Center for Democracy and Technology, "Overview of the NetzDG Network Enforcement Law," [READ ALL]

3.3 [Mar 17] Misinformation and Disinformation 3.3 [Mar 17] Misinformation and Disinformation

Definitions: is there a difference between misinformation, disinformation, and fake news? Do the differences between these terms matter?
Should we combat disinformation and misinformation? If so, how?
What is the responsibility of governments, online platforms, ordinary individuals, and other actors in society with regard to disinformation and misinformation?
Are there particular contexts where disinformation/misinformation is more harmful than others?

3.3.1. David Lazer et al., "The science of fake news," Science (Mar. 9, 2018) [READ ALL]

David Lazer et al., "The science of fake news," Science (Mar. 9, 2018) [READ ALL]

3.3.2. Scott Shane, "These Are the Ads Russia Bought on Facebook in 2016," NY Times (Nov. 1, 2017) [READ ALL]

Scott Shane, "These Are the Ads Russia Bought on Facebook in 2016," NY Times (Nov. 1, 2017) [READ ALL]

3.3.3. Rob Goldman and Alex Himel, "Making Ads and Pages More Transparent," (Apr. 6, 2018) [READ ALL]

Rob Goldman and Alex Himel, "Making Ads and Pages More Transparent," (Apr. 6, 2018) [READ ALL]

3.3.4. Aarti Shahani, "Inspired by Russia, He Bought Influence On Facebook," NPR All Things Considered (May 31, 2019) [READ ALL]

Aarti Shahani, "Inspired by Russia, He Bought Influence On Facebook," NPR All Things Considered (May 31, 2019) [READ ALL]

3.3.5. Sheera Frenkel, "Facebook Tried to Rein In Fake Ads. It Fell Short in a California Race." NY Times (June 3, 2018) [READ ALL]

Sheera Frenkel, "Facebook Tried to Rein In Fake Ads. It Fell Short in a California Race." NY Times (June 3, 2018) [READ ALL]

3.3.6. Tony Romm et al., "Facebook won't limit political ad targeting or stop false claims under new rules", Wash. Post (Jan. 9, 2020) [READ ALL]

Tony Romm et al., "Facebook won't limit political ad targeting or stop false claims under new rules", Wash. Post (Jan. 9, 2020) [READ ALL]

3.3.7. Peter Wade, "Elizabeth Warren’s New Facebook Ad Brutally Owns Mark Zuckerberg," Rolling Stone (Oct. 12, 2019) [READ ALL]

Peter Wade, "Elizabeth Warren’s New Facebook Ad Brutally Owns Mark Zuckerberg," Rolling Stone (Oct. 12, 2019) [READ ALL]

3.3.8. [OPTIONAL] Facebook, "Facing Facts" [VIDEO--11 min]

[OPTIONAL] Facebook, "Facing Facts" [VIDEO--11 min]

3.4 [Mar. 18] Platform Content Policies 3.4 [Mar. 18] Platform Content Policies

What kinds of content should online platforms permit / prohibit?
How should online platforms go about deciding whether to permit / prohibit certain forms of content?
What is the nature of platforms' content rules? Are they laws? Contracts? Guidelines? Or just self-serving statements?
Should different speakers be subject to diferent rules when it comes to regulating online content?
What is the role of human rights law when platforms are setting their content policies?

3.4.1. Josh Halladay, "Twitter's Tony Wang: 'We are the free speech wing of the free speech party'", Guardian (Mar. 22, 2012) [READ ALL]

Josh Halladay, "Twitter's Tony Wang: 'We are the free speech wing of the free speech party'", Guardian (Mar. 22, 2012) [READ ALL]

3.4.2. Sarah Jeong, "The History of Twitter's Rules," Motherboard (Jan. 14, 2016) [READ ALL]

Sarah Jeong, "The History of Twitter's Rules," Motherboard (Jan. 14, 2016) [READ ALL]

3.4.3. Twitter, "The Twitter Rules," [READ ALL]

Twitter, "The Twitter Rules," [READ ALL]

3.4.4. Twitter, "Violent Threats Policy," [READ ALL]

Twitter, "Violent Threats Policy," [READ ALL]

3.4.5. Theodor Schleiffer, "Twitter won't censor Trump's rule-breaking tweets, but it will make them harder to find," Vox (Jun. 27, 2019) [READ ALL]

Theodor Schleiffer, "Twitter won't censor Trump's rule-breaking tweets, but it will make them harder to find," Vox (Jun. 27, 2019) [READ ALL]

3.4.6. Kate Klonick, "Does Facebook's Oversight Board Finally Solve the Problem of Online Speech?" (Oct. 28, 2019) [READ ALL]

Kate Klonick, "Does Facebook's Oversight Board Finally Solve the Problem of Online Speech?" (Oct. 28, 2019) [READ ALL]

3.5 [Mar. 19] Dangerous Speech and Platform Responses: Guest Speaker--Dunstan Allison-Hope, BSR 3.5 [Mar. 19] Dangerous Speech and Platform Responses: Guest Speaker--Dunstan Allison-Hope, BSR

What is the difference between hate speech, harmful speech, and dangerous speech?
What should platforms do about speech that is "lawful but awful?"
What responsibilities do online platforms bear for misuses of their products?
What responsibilities do online platforms have to police the content that is published on their platforms?
What due diligence should online platforms conduct when entering into new markets, when the internet is a single global network (at least in theory)?

3.5.1. Dangerous Speech Project, "FAQ," [READ ALL]

Dangerous Speech Project, "FAQ," [READ ALL]

3.5.2. Simon Van Zuylen-Wood, "'Men Are Scum:' Inside Facebook's War on Hate Speech," Vanity Fair (Feb. 26, 2019) [SKIM]

Simon Van Zuylen-Wood, "'Men Are Scum:' Inside Facebook's War on Hate Speech," Vanity Fair (Feb. 26, 2019) [SKIM]

3.5.3. Dunstan Allison-Hope, "Our Human Rights Impact Assessment of Facebook in Myanmar" (Nov 5, 2018) [READ ALL]

Dunstan Allison-Hope, "Our Human Rights Impact Assessment of Facebook in Myanmar" (Nov 5, 2018) [READ ALL]

3.5.4. Alex Warofka, "An Independent Assessment of the Human Rights Impact of Facebook in Myanmar" (Nov. 5, 2018) [READ ALL]

Alex Warofka, "An Independent Assessment of the Human Rights Impact of Facebook in Myanmar" (Nov. 5, 2018) [READ ALL]

3.5.5. [OPTIONAL] [WARNING--CONTAINS IMAGES OF GRAPHIC VIOLENCE] Alexandra Stevenson, "Facebook Admits It Was Used to Incite Violence in Myanmar," N.Y. Times (Nov. 6, 2018) [SKIM]

[OPTIONAL] [WARNING--CONTAINS IMAGES OF GRAPHIC VIOLENCE] Alexandra Stevenson, "Facebook Admits It Was Used to Incite Violence in Myanmar," N.Y. Times (Nov. 6, 2018) [SKIM]

3.5.6. BSR, "Human Rights Impact Assessment: Facebook in Myanmar" (Nov. 2015) [READ ALL]

BSR, "Human Rights Impact Assessment: Facebook in Myanmar" (Nov. 2015) [READ ALL]

3.5.7. The Christchurch Call to Eliminate Terrorist & Violent Extremist Content Online (2019) [SKIM]

The Christchurch Call to Eliminate Terrorist & Violent Extremist Content Online (2019) [SKIM]

3 Regulating Free Expression Online 3 Regulating Free Expression Online

3.1 [Mar. 10] Free Expression: The Law 3.1 [Mar. 10] Free Expression: The Law

3.1.1 U.S. Constitution, First Amendment (READ all) 3.1.1 U.S. Constitution, First Amendment (READ all)

Amendment I

3.1.2 Brandenburg v. Ohio 3.1.2 Brandenburg v. Ohio

3.1.3 Canadian Charter of Rights and Freedoms, ss. 1-2 (READ all) 3.1.3 Canadian Charter of Rights and Freedoms, ss. 1-2 (READ all)

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Guarantee of Rights and Freedoms

Rights and freedoms in Canada

Fundamental Freedoms

Fundamental freedoms

3.1.4 R. v. Keegstra, [1990] 3 S.C.R. 697 (READ Headnote only) 3.1.4 R. v. Keegstra, [1990] 3 S.C.R. 697 (READ Headnote only)

3.1.5. Adam Litpak, "Hate Speech or Free Speech," N.Y. Times (June 11, 2018) (READ all)

3.1.6 ICCPR, Articles 18-20 (READ All) 3.1.6 ICCPR, Articles 18-20 (READ All)

3.1.7. International Media Support, "Briefing Note 2: Restrictions on Freedom of Expression," (READ all)

3.2 [Mar. 12] Intermediary Liability 3.2 [Mar. 12] Intermediary Liability

3.2.1. Stanford Center for Internet and Society, "Intermediary Liability," [READ ALL]

3.2.2 Section 230 of the U.S. Communications Decency Act (CDA) of 1996 (47 USC § 230) [READ highlighted passages; SKIM the rest] 3.2.2 Section 230 of the U.S. Communications Decency Act (CDA) of 1996 (47 USC § 230) [READ highlighted passages; SKIM the rest]

3.2.3 Hassell v. Byrd, 5 Cal.5th 522 (2018) [READ EXCERPTS] 3.2.3 Hassell v. Byrd, 5 Cal.5th 522 (2018) [READ EXCERPTS]

DAWN L. HASSELL et al., Plaintiffs and Respondents,v.AVA BIRD, Defendant;YELP INC., Objector and Appellant.

525*525 OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

II. DISCUSSION

A. Section 230

B. Judicial Construction of Section 230

1. Zeran

2. Kathleen R.

3. Barrett

C. Analysis

III. DISPOSITION

549*549 I.

A.

B.

C.

D.

II.

III.

I.

II.

III.

IV.

V.

3.2.4 Baglow v. Smith, 2015 ONSC 1175 [READ EXCERPTS] 3.2.4 Baglow v. Smith, 2015 ONSC 1175 [READ EXCERPTS]

Overview

The Impugned Words

The Evidence at Trial with Respect to Defamation

Dr. Baglow

Roger Smith

Connie Fournier

Mark Fournier

Dr. Greg Elmer

Spoliation

The Case Law

Determination

3. The words complained of are defamatory of the plaintiff:

The Defence of Fair Comment

1. The comment is on a matter of public interest:

2. The comment is based on fact:

3. The comment, though it can include inferences of fact is recognizable as comment:

4. Any person could honestly express the opinion on the proved facts

Malice:

Costs:

3.2.5. Hugh Stephens, "Did Canada Get "Section 230" Shoved Down its Throat in the USMCA?" [READ up to the heading "Section 230 is Dangerous"]

3.2.6. World Intermediary Liability Map, Summary of EU E-Commerce Directive Provisions on Intermediary Liability [READ ALL]

3.2.7. Center for Democracy and Technology, "Overview of the NetzDG Network Enforcement Law," [READ ALL]

3.3 [Mar 17] Misinformation and Disinformation 3.3 [Mar 17] Misinformation and Disinformation

3.3.1. David Lazer et al., "The science of fake news," Science (Mar. 9, 2018) [READ ALL]

3.3.2. Scott Shane, "These Are the Ads Russia Bought on Facebook in 2016," NY Times (Nov. 1, 2017) [READ ALL]

3.3.3. Rob Goldman and Alex Himel, "Making Ads and Pages More Transparent," (Apr. 6, 2018) [READ ALL]

3.3.4. Aarti Shahani, "Inspired by Russia, He Bought Influence On Facebook," NPR All Things Considered (May 31, 2019) [READ ALL]

3.3.5. Sheera Frenkel, "Facebook Tried to Rein In Fake Ads. It Fell Short in a California Race." NY Times (June 3, 2018) [READ ALL]

3.3.6. Tony Romm et al., "Facebook won't limit political ad targeting or stop false claims under new rules", Wash. Post (Jan. 9, 2020) [READ ALL]

3.3.7. Peter Wade, "Elizabeth Warren’s New Facebook Ad Brutally Owns Mark Zuckerberg," Rolling Stone (Oct. 12, 2019) [READ ALL]

3.3.8. [OPTIONAL] Facebook, "Facing Facts" [VIDEO--11 min]

3.4 [Mar. 18] Platform Content Policies 3.4 [Mar. 18] Platform Content Policies

3.4.1. Josh Halladay, "Twitter's Tony Wang: 'We are the free speech wing of the free speech party'", Guardian (Mar. 22, 2012) [READ ALL]

3.4.2. Sarah Jeong, "The History of Twitter's Rules," Motherboard (Jan. 14, 2016) [READ ALL]

3.4.3. Twitter, "The Twitter Rules," [READ ALL]

3.4.4. Twitter, "Violent Threats Policy," [READ ALL]

3.4.5. Theodor Schleiffer, "Twitter won't censor Trump's rule-breaking tweets, but it will make them harder to find," Vox (Jun. 27, 2019) [READ ALL]

DAWN L. HASSELL et al., Plaintiffs and Respondents,
v.
AVA BIRD, Defendant;
YELP INC., Objector and Appellant.

525 *525 OPINION

549 *549 I.