May 31, 2011 - posted by George Kirikos
As discussed on the legal page of my personal website, former ICANN Ombudsman Frank Fowlie commenced and later withdrew a legal proceeding against me at the Human Rights Tribunal of Ontario (HRTO). It was HRTO File Number 2011-08214-I, and the documents associated with the case can be seen below.
I considered this matter to be entirely frivolous and totally devoid of merit. Mr. Fowlie withdrew the case before my formal response to the HRTO was even filed, after he was advised by my great attorneys Andrew Bernstein and Yael Bienenstock at Torys that we would be filing to dismiss the matter and that there would be no mediation. In particular, I'd like to note for the record that I did not agree to settle the matter with Mr. Fowlie. Free speech rights are highly protected in Canada, and I will always vigorously defend my constitutional rights.
This matter provides us with a "teachable moment" for anyone considering filing such a complaint in the future, or needing to defend such a complaint. It is also of public interest to understand how those in the dispute resolution field handle their own disputes. It is also important for those members of the public who comment on matters of public policy, including internet governance, to understand that they should be vigilant against forces who would attempt to censor them.
Of course, as these are tribunal documents, all the below claims are mere allegations, and were not proven. Indeed, as noted in the Administrative Closing document, the application has been withdrawn.
These documents are provided for informational and educational purposes only.
If linking to us, please link only to this page, and not directly to the PDFs, in case they are moved/renamed.
Human Rights Tribunal of Ontario
HRTO File No.: 2011-08214-I
Date Filed: February 25, 2011
I am not a lawyer, and the following is not legal advice. However, it might be useful to explain why I feel this complaint had no legal merit.
1. I was not Mr. Fowlie's employer or an agent of his employer or a fellow employee: To bring an action before the HRTO with regards to employment, Section 5(2) of the Human Rights Code of Ontario tells us that the jurisdiction is limited to the employer, an agent of the employer (e.g. an employment agency), or another employee. You can't bring an employment complaint against a member of the general public using the HRTO - it lacks jurisdiction.
Mr. Fowlie says on page 3 of Form 1-A that his employer is 6315941 Canada Limited, and then embellishes that description by arguing within the "full name of the organization" that it is under contract to ICANN. So, if his employer is 6315941 Canada Limited, his own company, that's not me! I'm not an agent (a person legally authorized to act on behalf of) of that company, nor am I a fellow employee of that company. So, the action would immediately fail due to lack of jurisdiction if 6315941 Canada Limited is the relevant employer.
Let's pretend for a moment that ICANN is the relevant employer. Am I an employee of ICANN? Obviously not. Am I ICANN itself? No, ICANN is a non-profit organization, that, by Article XVII of its Bylaws, has no members. Am I an agent of ICANN? No, as I can't act on their behalf. If one looks at page 1 of Form 1-A, you know Mr. Fowlie is in trouble when he was forced to fill in the box "Other" to attempt to describe me. Then, he makes it even easier on us in the 2nd paragraph of page 7 of Form 1-A when he admits I'm not his "direct employer, nor an agent" of his employer. Hello? Those are the only people you can bring an action against, besides a fellow employee.
The long and convoluted argument that followed suggested that the Tribunal should disregard that, and instead allow him to bring a complaint against any ICANN "stakeholder" -- an absurd notion indeed, given that ICANN routinely considers the billions of users of the internet, and even those not yet using the internet (e.g. undeveloped countries) to be "stakeholders" (i.e. affected by its decisions on matters of public policy). Owning a domain name (i.e. paying fees to a registrar, who then remits those fees to ICANN) obviously does not make one Frank Fowlie's employer. Nor does participating in public discussions and policy debates. The metaphor he attempts to utilize is obviously fatally flawed. The correct metaphor is a member of the general public commenting on matters of public policy (just as happens in local governments or other policy-making bodies that are open to public input).
2. Let's pretend that somehow Mr. Fowlie overcame the fatal flaws mentioned above. If one reads the complaint, the essence involves claims of defamation and/or privacy. The HRTO is still the wrong place to bring such a claim, as it lacks jurisdiction over those issues. So, once again, the case would get dismissed, in my opinion.
3. Let's pretend that Mr. Fowlie actually did want to argue a defamation case or privacy case in a proper forum. Truth is a complete defence to defamation. Mr. Fowlie, despite pages of documents, never suggests any statement is actually false. He just dislikes the notion of anyone criticizing him! Fortunately, in Canada there exist constitutional protections for true speech, opinions and fair comments, among other fundamental rights. The examples Mr. Fowlie cites were never claimed to be false statements, and true statements are incapable of meeting the legal test for "defamation." Quoting verbatim from a court case (i.e. the February 2011 tweets that Mr. Fowlie highlighted)? The Supreme Court of Canada has even said:
The open court principle is of crucial importance in a democratic society. It ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them. Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.So, citizens are free to comment on judicial proceedings and quote from them. In the age of citizen journalism using tools like blogs, twitter, etc., this right is even more important. I linked to source documents (as I often do), so readers could verify the source of the quote and the context.
In conclusion, this case was lost before it even started. In my opinion, it ignored the law and the facts in order to attempt to censor a critic. Fortunately, this attempt at censorship failed miserably. As Milton Mueller has documented, this is not the first time that attempts at censorship have taken place in relation to ICANN. I can only hope it will be the last.