For those wondering about my recent blog posts establishing, beyond any doubt, Ezra Levant's widespread reputation as a scumbag, piece of shit, grifter, scam artist, huckster, con artist, and so much more (some yet to come as, trust me, we've barely started here), it's time to make yourself comfortable so I can explain what the point of all that is. The point is actually quite simple: defamation law in Canada is fundamentally rooted in the idea that defamation requires one's reputation to have been injured, damaged or tarnished, and if there is no damage to reputation, there is -- ipso facto -- no defamation. Isn't that something? So why does this matter?
A good deal of this philosophizing is inspired by this delightful paper by one Dr. Hilary Young, who argues quite compellingly that there is far too little attention paid to whether defamation actually exists if there is no obvious injury to reputation. As Young writes early on:
The test for prima facie defamation has been phrased in a number of ways; Gatley notes that “[t]here is no wholly satisfactory definition of a defamatory imputation”,and that “it is probable that not all the cases are reconcilable with a single principle”. The most commonly cited test is whether the words have “a tendency...to lower [the plaintiff] in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem”
What does this mean? Well, in my humble opinion, it means first that the entire legal profession has been unforgivably lazy in not actually considering this fundamental requirement for something to be defamation before launching itself boldly into simply accepting that talking smack about someone is automatically defamation and yammering on endlessly about defenses like justification and fair comment and on and on and tediously on, when a simpler approach might have been to start with the above test to see if there was any defamation to begin with.
Note well the implications of the above -- rather than automatically accepting that something is defamatory, then spending 87 gazillion dollars arguing defenses, the above suggests that it should be entirely possible to argue that there was no conceivable damage to reputation, at which point the action should be over. Done. Finito. That is precisely what the above suggests, and Young's paper suggests that maybe too little attention is paid to this strategy, which would save everyone buckets of time and money. So let's look at this in a bit more detail, shall we?
To argue that there is no damage to reputation, one must first define the word "reputation," which any decent dictionary will tell you is "the beliefs or opinions that are generally held about someone or something." In other words (and this is important), you do not get to define your own reputation; rather, it is defined by others. Make damned sure you understand that properly -- if I want to establish your reputation about something, I have no need to ask you; rather, I would ask everyone else, because it is everyone else's opinion about you that defines your reputation. We need an example.
Say someone describes Ezra Levant publicly as a "grifter," and Ezra -- being the whiny, delicate snowflake that he is -- jumps up and down and screams that he has been defamed. According to the general understanding of defamation as explained above, for that to be defamation, it would be necessary for calling Ezra a "grifter" to have, in some way, injured or damaged his reputation, such that right-thinking members of society would tend to think less of him. But here's Ezra's problem.
As I have already established, Ezra already has a universal reputation as a grifter. There is no question about that, and that was established simply by checking around to see what other people think. There was absolutely no need to check with Ezra about this since, as we have already established, it is other people who define your reputation, so it is only other people whose opinions are relevant. See how that works? In other words, based on a straightforward reading of Canadian defamation law, calling Ezra Levant a "grifter" cannot possibly constitute defamation since that is already his reputation. And, as one can see above, the same can be said about characterizing Ezra as a con man, scam artist, scumbag, huckster and piece of shit. No damage to reputation? Ergo, by definition, no defamation. But it gets better, and you'll want to pay attention to this next part.
In a typical defamation trial, if one wants to yammer on about the defamitude of the accusation "grifter," one normally hears bloviating like "Oh, yeah, what's your proof that he's a grifter?" or "Do you have any evidence that he's a grifter?", etc, etc. Hilariously, none of that is relevant here for a perfectly obvious reason.
There is nothing about the definition of the word "reputation" that requires it to be fair, or accurate, or warranted. Not in the slightest possible way. The requirement for something to be defamation, as described above, is that it must, in some way, injure reputation; whether or not that reputation is accurate has nothing to do with it. So, when this case eventually goes to trial in early 2036, and Ezra's bloviating gasbag of a lawyer shrieks, "Where's your proof of my client being a grifter?", the simple slapback will be, "I don't have to prove any of that; it is simply his reputation, as I have established."
More concisely, in context of this argument, one does not have to prove that Ezra is a grifter; one need show only that he has a reputation as a grifter (a much simpler task which I have already done).
Is that delightful or what?
SIDE NOTE: It is worth pointing out that my having established Ezra Levant's reputation as a grifter, con man, huckster and on and on will not just be useful for me; all of that is now available to anyone who Ezra tries to intimidate with another wretchedly dishonest SLAPP suit, which means that all of my time and effort spent on those earlier blog posts is now available free of charge for anyone else who might find it useful.
You're welcome. But we're not quite done.
Some readers are surely thinking, "Well, sure, you proved that some people think Ezra is a grifter, but he'll argue that other people don't, so how do you respond to that?" An excellent question, with a couple responses.
First, note well how the definition of defamation requires that the reputation of the plaintiff must be lowered in the eyes of "right-thinking" members of society, and it's relatively safe to say that most people who idolize Ezra Levant are part of a particular demographic that can be described as, well, you know, morons. And even though that is a defensible argument to make, there is one that is not quite so facetious.
Of course there will be people who think Ezra walks on the Sea of Galilee without water wings, but it's safe to say that those people will continue to believe that no matter what, just as people who are convinced Ezra is a sleazy con man and opportunistic grifter are not going to change their opinions. Put another way, even if there is a massive split on Ezra's reputation as a grifter, it would be easy to argue that none of those peoples' opinion would change in any meaningful way at this point. People who think Ezra is a shining star of probity will continue to believe that, while others convinced that he is a sleazebag of the highest order will continue to believe that. In short, it's highly unlikely, at this point, that any opinions of Ezra Levant are going to be changed. By definition, then, no change to reputation and, therefore, no defamation.
So why hasn't this strategy been used far more widely? Why is it that the legal system appears to be so unspeakably lazy that so few people make this argument that could short-circuit frivolous and obvious SLAPP actions? I will hazard a guess. It's because, for normal plaintiffs, it's probably difficult to establish so clearly the lack of damage to reputation, so everyone just shrugs, agrees that the utterances were by definition defamatory, and moves on to defenses. But what if one has a truly special plaintiff?
What if the plaintiff is the sleazy, bottom-dwelling, opportunistic grifter and scam artist Ezra Levant, for whom a reputation can be established by a simple search of social media? What if the plaintiff is someone who has, over the years, deliberately and explicitly cultivated a reputation as an "outspoken provocateur and troublemaker", even using that reputation as part of a legal defense when he was being sued:
In finding for plaintiff Khurrum Awan, who was at the time an Osgoode
Hall law student, the judge also rejected a defence, put forward by
Levant's lawyers, that their client's reputation as an "outspoken
provocateur and troublemaker" would preclude most reasonable people from
taking his defamatory statements literally.
While arguing about lack of damage to reputation might not work with most plaintiffs, it seems that this argument is exactly what one wants to put on the table when dealing with a vile, loathsome, reprehensible piece of human garbage such as Ezra Levant. And I can assure you, all of that will be on the table. And I've barely started.
P.S. Feel free to contribute to my fundraiser, and I will continue to post info that I think others will find useful.
AFTERSNARK: It's worth pointing out that the above is just another strategy I'll be bringing up at trial, along with Ezra's failure to serve me with a Notice of Libel, Ezra's openly bragging to an ex-Rebel Media hack that he sued me specifically to tie me up in court for five years, and his admissions that all of my criticisms of his 2016 Indiegogo fundraiser were, in fact, totally accurate.
Gonna be an interesting trial.
IRONY OF IRONIES: It is more than a little amusing that Ezra, even as he was insisting that my simply pointing out the obvious financial flaws in his 2016 fundraiser so egregiously damaged his reputation that only $95,000 could console him, was, at the very same time, arguing to the court that he should not be held responsible for his own defamation of Khurrum Awan for the reason that (wait for it ... wait for it ...) his own reputation for accuracy and integrity was so valueless that no reasonable, right-thinking person would take him seriously:
You read that correctly -- a major part of Ezra's defense as a defendant in a defamation action was that no one should take him seriously given his utter lack of reputation.
I can assure you that position will be front and centre when this case goes to trial.