Kathy Shaidle and Kate McMillan file their defence against Richard Warman

Kate McMillan of Small Dead Animals and Kathy Shaidle of Five Feet of Fury have filed their defence against Richard Warman's nuisance suit. You can see their defence, drafted by Toronto lawyer Chris Ashby, here.

(Ashby's defamation work has made headlines before. Here's a story about his successful lawsuit against the CBC. Taking on the CBC with its in-house stable of lawyers is a bit of a David and Goliath exercise. I understand that, during that 5 1/2 week trial, it was just Ashby and his client on one side of the court, and six lawyers and CBC managers on the other side. Ashby won $200,000 plus costs for his client.)

But back to the case at hand. Warman's suit can be seen here, and my commentary on it at the time can be seen here.

The National Post and Jonathan Kay filed their defence, which you can see here. My commentary on it is here.

Connie and Mark Fournier of Free Dominion filed their defence here. My commentary on it is here.

I am now the only defendant who has not filed his statement of defence. I expect to do so this week.

Ashby's defence is written in pretty plain English, but allow me to point out some interesting parts.

I liked paragraph 4. Warman had sued not only Kate and Kathy, but their website addresses, too. That makes about as much sense as suing a phone number. A URL is simply a place in cyberspace. It's not a legal entity. It's just plain old weird that Warman was suing those electrons, and Ashby pointed that out.

Paragraphs 7 and 8 are good points: the nature of the blogosphere is that people can rebut and respond immediately, and blogs incorporate those changes in real time. There is a rough and tumble -- even rude -- nature to the Internet, but netiquette (and common sense) suggests that if someone complains with merit, those complaints are often incorporated. It's the whole Web 2.0 thing -- interactive. Warman knows that as well as anyone -- what with his extensive experience as a member of the Stormfront online community. When Warman went online in his various neo-Nazi personas, he interacted with other members of Stormfront, correcting them, insulting them, rebutting them, agreeing with them, plotting with them, dissing Jews and gays with them.

See here, here, here and here. Warman knew his way around the Net. But while he was comfortable chatting on neo-Nazi websites, and chastising people for not being white enough, or Nazi enough, for some reason he didn't deign to write the Internet equivalent to a "letter to the editor" to Kate or Kathy's sites correcting what he thought were their errors. Why's that?  

Paragraphs 11-15 are weird, too. Warman has sued Kathy for things she didn't write. If I'm not mistaken, our friend Jay Currie wrote some of those words, but Warman hasn't sued him. I'm not encouraging anyone to sue Jay, but it's a little bit odd that Warman has sued Kathy for Jay's remarks.

Paragraph 16 is a pretty important point, and it goes to a much larger issue than the substance of Warman's suit. Warman seeks to establish new defamation law, in the realm of the Internet. In his statement of claim, he wants the courts to hold websites legally responsible not only for what they publish, but for what they link to. By that theory, anyone on the Internet is liable for everyone on the Internet. For you are liable for everyone you link to, and they're liable for everyone they link to (and so are you, too), and so on and so on. It sets up a cascading series of infinite liability.

Fortunately, such a punitive approach to defamation and censorship is not Canadian law. Yet.

The heart of Kate and Kathy's defence is paragraphs 17 to 22. That's where they plead that what they wrote was based on true facts, and their fair comments on those facts, as part of a bona fide public debate.

Paragraph 24 is deceptively small. It claims that Warman's poor reputation isn't because of Kathy and Kate, but because of Warman's repeated postings of bigoted material. That's just a sentence in the statement of defence. I expect it will turn into a week at trial.

There's not much for me to add by way of commentary here that I didn't say when the previous four defendants filed their statements of defence. Ashby's style is efficient -- just pleading the key points. He'll be interesting to watch at trial.

I'll wait until it's filed before discussing my approach to my statement of defence. Let's just say I'm going to be a little bit more loquacious about the reputation that the plaintiff claims has been damaged.