Friday, July 22, 2022

Wherein Rebel News both wins and loses the same anti-SLAPP motion.

Ohhhhhhh myyyyyyy ... a most interesting development in the universe of Rebel News-related defamation actions, so make sure you read all the way to the end.

It begins with the relentlessly and appallingly bigoted and transphobic yobs at Der Rebel who -- over many, many months -- stalked and harassed and publicly confronted self-described transgender woman Jonathan Yaniv aka Jessica Yaniv aka Jessica Simpson, to the point where Simpson (as she is named in the legal action) had had enough and sued Rebel News and its collection of transphobic asshats for defamation. So far, so good.

SIDE NOTE: There is little question that Simpson is a disgusting human being, so make sure you don't see this post as any sort of defense of her behaviour. If she were any creepier, she could work for the Toronto Sun. In any event ... onward.

In a moderately surprising turn of events, Rebel News fought back with an anti-SLAPP action under the B.C. legislation (which is virtually indistinguishable from the similar Ontario law). You can read the ruling here so let's cut to the chase -- while Rebel News "journalists" were a vile, execrable lot throughout this harassment, Simpson did not make her case for defamation, and her action was (in my opinion correctly) dismissed under the B.C. anti-SLAPP legislation. And that's the end of the story, right?

Um, no, because this is where it gets really entertaining.

You see, one of the fundamental features of both B.C.'s and Ontario's anti-SLAPP laws is that, if you are the defendant in a defamation action (as Rebel News was here), and you win your motion (which Rebel News did), the presumption is that you are entitled to full indemnity -- that is, you are awarded your full legal costs on the action. The rationale for that feature is the position that if you are the target of a SLAPP suit, and you fight back and win, it should not cost you any cash. Put another way, if you win your motion, the plaintiff (in this case Simpson) is obliged to cover the defendant's entire legal bill. So that's what happened, right?

Um, no, because here's what happened next.

Despite the judge in this case ruling for Rebel News and dismissing Simpson's action, he wasn't quite done, as he then went on to excoriate Der Rebel's reporters for being, well, assholes as he described the value of their journalistic "expression" while writing about Simpson [emphasis added]:

[90]      In assessing the value of the impugned expression at issue in this case, I accept that at least part of the motivation behind Rebel News’ reporting was to warn the public about what the reporters believed to be the threat that Ms. Simpson’s conduct poses to society. Rebel News says that it strives to present an alternative point of view. Many will find the views that it expresses, here and elsewhere, to be highly offensive. It is, however, precisely in such cases that the law’s commitment to protecting freedom of expression will be most sorely tested.

[91]      Nevertheless, the expression in issue here was deeply problematic in various ways, both in terms of its quality and the apparent motivation behind it.

[92]      First, it was, by any measure, heavily laden with vitriol and gratuitous insults. Although I have accepted that Rebel News has a viable defence of “fair comment”, on the basis that the views expressed were ones that could honestly be held on the facts presented, it does not follow that the underlying inferences were always reasonably drawn. Of particular concern in that regard is the fact that much of the name-calling directed at Ms. Simpson echoed, and tended to reinforce, pernicious stereotypes about transgender people generally.

[93]      Further, the reporters’ conduct in confronting Ms. Simpson at her home or hotel and asking the same inflammatory questions over and over again, appears to have been intended primarily to provoke a scene and so provide entertainment at Ms. Simpson’s expense, rather than to elicit information to enrich the public discourse.

Make sure you understand what is happening in the above -- despite having ruled for Rebel News, the judge is sufficiently pissed off with the sleazy and transphobic bigots at that media outlet that he makes it clear he is disturbed by their assholishness. Well, OK, but so what? They won, so what does it matter if the judge is nonetheless annoyed with them? And here's the fun part.

You see, B.C.'s anti-SLAPP legislation (like Ontario's) has a presumption that, if you win your motion, you get full indemnity (full reimbursement of your legal fees). However, both province's legislation leaves wiggle room for the judge to change that under unusual circumstances ... which is exactly what the judge did here, and I quote [emphasis tail-waggingly added]:

[99]      In addition, although I have found that Ms. Simpson has failed to meet the burden upon her under s. 4(2)(a) of the PPPA, it does not follow, given my earlier observations, that she had nothing to complain about in how she was treated.

[100]   In summary, I have concluded that an award of full indemnity costs would not be appropriate in the unusual circumstances of this case. Instead, my order will be that the parties are to bear their own costs.

[101]   The application is allowed.

[102]   The action is dismissed, with each party bearing their own costs.

Go back and read that carefully until you understand what happened; the judge, even while ruling in favour of Rebel News on the motion, was so disgusted by the behaviour of the vulgar, bigoted assholes at Rebel that he refused to award them the presumptive full indemnity, choosing instead to send a message that, even while winning the motion, they were such sleazebags that he was going to make them eat their costs.

This has two delightful consequences.

The first obvious consequence is that Rebel News is, even after winning, out most likely tens of thousands of dollars in legal fees. But that's not the best part.

No, the best part is the precedent this sets, in establishing that if someone sues Rebel News for defamation, and Rebel files and wins an anti-SLAPP motion, there is now an identifiable precedent for Rebel not being awarded costs because of their behaviour. And that should send a real chill through Ezra Levant's nether regions, as he now knows that even if the court sides with him in future cases, it might still tell him and his crappy, white supremacist media outlet that it needs to pay its own tab.

Thanks for stopping by.


Anonymous said...

Is Rebel going to pay its legal fees with money they collected through The Democracy Fund, for which donors were given charitable tax receipts?

Anonymous said...

It's more than likely that the company's general commercial liability insurer will be picking up the tab. Of course, the judge's ruling will factor into additional risk premiums.