Québec Superior Court judge Honourable Carole Julien has rendered a decision that will potentially discourage independent journalists from investigating and reporting on stories and personalities of public interest – while giving mainstream media a better level of comfort when producing their own work… as the judge believes such professional media possess “quality control mechanisms”.
Philippe Magnan, an internet blogger promoting the separation of religion and state, was accused of defamation in 2014 by the self-styled feminist activist Dalila Awada, who defended her right to wear Islamic clothing without restrictions at the time the government wanted to legislate on a Charter of Values.
Defendant Magnan was found guilty of defamation in a landmark decision rendered July 10, 2018. He was ordered by Judge Carole Julien to pay the accuser Awada $60,000 plus costs.
Why this case particularly concerns independent media
In her decision, the judge recognizes that the digital age has changed the relationship citizens have with media. She states that anyone can improvise himself a purveyor of information while being free from "traditional regulatory mechanisms", leaving the quality of information unchecked and to the discretion of those who convey it.
Furthermore, the judge believes that while consumers are responsible to ensure the quality of information by checking the sources and qualifications of those who propose it, this task is often difficult.
Then comes the shocker… or rather shockers.
The judge then states that no evidence of expertise was offered during this trial concerning the existence of mechanisms guaranteeing that information available “on the web” is real and valid when it comes from “citizens”.
The Tribunal finds these mechanisms still remain in the niche of "professional" journalism. Judge Julien then cites a decision of the Quebec Press Council as an obvious example of such mechanisms in action, and deems that no such mechanism protects Awada against Magnan's publications. Only the protection afforded by the courts remains.
It seems like this judge wants to save Democracy from Fake News.
Is the Quebec Press council a “regulatory mechanism” for all mainstream media?
Membership to the Quebec Press Council is on a voluntary basis. In fact, Quebecor’s various media are not currently members (I called, asked, and have it on tape). Therefore, Quebecor media does not have to abide by the Council’s disciplinary decisions.
Doesn’t that qualify Journal de Montréal and TVA Nouvelles as “fake news”?
If they’re not bound by a code of ethics – if they're not willfully submitting to disciplinary action – what makes these two mass media owned by Quebecor any different from independent bloggers?
Judge Julien is certain about one thing though: that our democracies are based on a free press of quality, among other things. That’s a direct quote (translated) from paragraph 239 of her judgment cited above. In the same paragraph:
Sites that swarm in the margins of quality control mechanisms are likely to spread false news, unverified theories without foundations. The dissemination of false information is a greater danger than the muzzling of the press for our democracies. A good example of this prejudice lies in the factual background of this case.
So, the problem is the facts…
What did Magnan do wrong?
There are three ways to defame someone, as set out by the Supreme Court judgment of Prud’homme vs Prud’homme, quoted by Judge Julien:
- a person maliciously makes unpleasant remarks about another, knowing them to be false and with intention to harm;
- a person spreads unpleasant things about someone else, when he should have known them to be false, i.e. didn’t do the research any reasonable person would have done, because if he doubted the truth of the information he would refrain from giving it out;
- a scandalmonger makes unfavourable – but true – statements about another person without any valid reason for doing so.
I researched a sample of what Magnan produced. From what I saw, this guy is sharp. His work appeared to be equal to or better than any investigative reporting I’ve seen, ever. I'm not contradicting the judge though. I do not have any training in law or journalism, and I did not appreciate the entirety of the evidence like the Honourable Carole Julien could.
However, the judge does recognize that Magnan spent a significant amount – if not all – of his time and energies on this matter. This bars the second situation – not doing enough research.
Although it is possible that Magnan is a complete idiot. He may have researched extensively in good faith, while (being a total idiot) incorrectly interpreting his own discoveries.
Idiot or not, by doing the research he does not qualify for defamation as per situation #2.
It’s not situation #3, either. That case assumes not having a valid reason for spreading nasty truths about someone. He did. That's because Bill 60 had been tabled by the Quebec government, and that bill specifically addressed the issue of wearing the veil in public (while voting, taking a picture for state-issued identification, etc.). The issue was definitely of public interest, and Awada was the poster-girl for the pro-veil camp. Fair game.
That leaves only one choice: malicious intent to harm knowing that one is spreading lies.
In her ruling, the judge determined that Magnan’s articles were full of lies and half-truths, went beyond the scope of public discussion, attacked Awada personally, and repeatedly discredited and humiliated her.
Magnan’s investigative reporting is not totally a web of lies however
There’s a fair bit of truth in what he reported. I checked it out. I’m not disagreeing with the judge; like I said, I didn’t research everything. There must be a thousand articles to read in there. I picked what caught my eye. Major things, I think.
Magnan related the following verifiable facts:
- By her own admission, Dalila Awada regularly frequented the Centre Communautaire Musulman de Montréal;
- Cheikh Ali Sbeiti, a follower of Ayatollah Khomeini, was the imam of that mosque at that time;
- The mosque became notorious for its veiling ceremonies in which 9 and 10 year-old girls would don the Islamic garb under the acclamations of the Shiite community (EDIT- the holding of veiling ceremonies at said mosque was hitherto unknown to the public; it is through Magnan's investigation that light was shed on the practice) ;
- Ali Sbeiti gave conferences on “Islamic fundamentals” and the wearing of the veil at the Bridges Association;
- Awada also participated as a speaker at the Bridges Association,
- both Sbeiti and Awada got regular coverage in Sada al-Mashrek, a pro-Khomeini publication which celebrates the Islamic Republic of Iran, Imam Khomeini (see page 29 of link) and the regime of the Ayatollahs. "Sada al Mashrek" means "The Echo of the Levant" and is the very serious paper of Montreal Shiites.
Awada admitted participating in what Magnan alleged but claimed she did it only for the social aspects, and argued she did not pledge allegiance to fundamentalist groups. The judge acknowledges this in paragraph 31 of her judgment.
In essence, Magnan connected Awada with Shiite Islamic fundamentalists and their networks, and the judge took offense to that.
In addition, Magnan considered Awada to be a “midinette” of the Islamic veil. In English, “midinette” translates to “silly young girl”. Although Magnan believes the plaintiff to be sincere in her desire to please God by wearing the veil, he maintains she is being used as an unwitting poster girl of Islam by hidden forces promoting Sharia.
Magnan's question "who are the the turbans behind these veils" is symbolic of his purpose: to expose the Islamic power networks operating in Quebec by discovering the relationships between few but very influential people.
Clearly, Magnan believes that submitting Western women to the Islamic veil is an easier sell when it comes from a pretty young woman. That she is too naïve to see it makes the sell even more convincing. The judge found this qualification humiliating and sexist.
Legal representation: it’s who you know when you don’t have the dough
While Magnan had a lawyer help him prepare his case, he acted alone during the trial because he could not afford representation, as he declared to me in an interview last week. Awada was represented pro-bono by Me Marie-Hélène Dubé of Goldwater Dubé and Me David Grossman of IMK.
When filing the lawsuit, lawyer and television personality Anne-France Goldwater declared to the media that Awada “demystifies the message that not all Moslems carry bombs on their backs”.
Exactly Magnan's point.
Awada’s image was to be a recurring theme in the judicial proceedings, as the judge remarked that the young woman is “brilliant, articulate, of remarkable beauty, wearing her colorful and becoming veil with elegance”.
Magnan, for his part, made the case that Awada’s seductive and reassuring image is key in selling the veil as a question of women’s free choice, as opposed to an obligation imposed by the patriarchy of Islamic oppression.
Historical context: the Charter of Values, media, and what Magnan was doing
Religious symbols were polarizing the political landscape in 2013, and Quebec society had not found satisfactory solutions to increasing demands from religious minorities. In order to work out these issues, the government had introduced Bill 60 to the Legislature, titled Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests. In short, this bill was referred to as the Charter of Values.
Dalila Awada was invited to Tout le monde en parle, the most watched television show in Quebec. Her appearance catapulted her into the public spotlight on an issue of public interest. Awada soon became the target of social media commentary and a great many news articles.
One of the websites which took interest in her was postedeveille.ca which was operated by Magnan. The site was developing a map of Islamic networks, a unique endeavor in Québec to this day. As discussed above, his purpose was to identify the power structures within Quebec’s Moslem communities at a time where Sharia law was a daily subject of conversation.
Magnan held a Master’s in Communication from Université de Montréal and was employing an analytical method which distinguished between public speech (words used) and networks which create public works (community centers, schools, mosques, logos).
So what did he do wrong? (bis)
First, I believe Magnan, despite being exceptionally bright, should have hired a lawyer. That is not a reflection on the justice system or his capacity to make an argument. It’s simply a question of measuring up to an opponent employing two extremely talented lawyers. He was not on equal footing.
Second, Magnan, the Master's degree in Communication, worked as an independent journalist, regardless of the words used… reporter, blogger, journalist, whatever.
That was not enough qualification to poke around, ask questions, and write editorials in a blog. He just wasn't working for Radio-Canada or another member of the Quebec Press Council.
Maybe the judge is right, and we all need checks and balances. Perhaps all media should be subjected to the Quebec Press Council. We may be horrified or appreciate the idea – but that’s not up to a judge to decide. Judges shouldn't make laws. That’s what democracy is all about: we vote for people who make laws in Parliament.
Yet, judges do create law through jurisprudence, and that’s why this judgment should trouble the reader of this text: it means any media based out of Quebec – and potentially Canada, if it reports on Quebec issues – can no longer operate without automatically being suspected of being “fake news”.
It means bad reporting from Radio-Canada can go to a disciplinary hearing at the the Press Council for a slap on the wrist, but bad reporting from ThePostMillennial.com or DixQuatre.com goes straight to court.
That’s why Philippe Magnan must appeal this judgment. He has 30 days from July 10th to file. That gives anyone who wishes to encourage him with a few dollars just one week to contribute to his crowd funding campaign. He’s carrying the ball for independent journalism in Canada today. Let's not leave him hanging out to dry.