Table of Contents
- Introduction
- Under the Legal Wire
- Unlocking the Back Door
- For the Public Record: Tea with Ted
- Inoculating the Media from a Libel Suit
- Transparently Sensational Story
IntroductionBack to Top
I filed a statement of claim against Rogers Wireless Inc on September 19, 2005. Rogers filed a Statement of Defence on October 4, 2005.
On August 14, 2006, Rogers filed a more elaborate and amended Statement of Defence.
In the amended defence Rogers’ draws this very web site into their legal arguments:
“In or about February of 2006,” Rogers’ lawyer writes, “the Plaintiff caused the ROGERSANDME.CA domain name to the [sic] registered at which website location the Plaintiff includes, among other things, a digital recording of a voicemail message from Edward S. Rogers, O.C., apparently for the purpose of attracting attention.
“The Plaintiff’s attempts to attract the attention of the media have resulted in the foreseeable consequence of inaccurate portrayals and mischaracterizations of the dispute between the parties.
“Since commencing this action against Rogers, the Plaintiff has continued to solicit media attention to her dispute for the purpose of drawing negative publicity to Rogers.”
There are several legal ethnographic insights that can be teased out of the introduction into the court record, by Rogers’ Legal Team, of the domain name ROGERSANDME.CA – which I concede that I "caused to be registered", and at which web site location I have begun to spin my ethnographic tale, page after page…
Under the Legal WireBack to Top
Happily, despite Rogers’ apparent awareness that this web site has been on the internet since February, 2006 Rogers has not sued me for libel for “causing the ROGERSANDME.CA domain name to be registered” and thereby “attempting to attract the attention of the media”. This is an implicit acknowledgment, I assume, that supposed “inaccurate portrayals” and reported “mischaracterizations” don’t add up to the falsehoods required to remove from me my absolute defence to an action in libel: the truth.
And now that Rogers has transformed www.rogersandme.ca into a public figure, I assume also that Rogers is aware that it has sharpened another weapon in my defensive arsenal against a charge of libel: fair comment:
“if the figure discussed is a public one, and there is a well founded public interest in the information being shared, then as long as the opinions disseminated are honestly held, regardless of the outlandishness of the content, the poster has good reason to believe they are on a secure legal footing.”
I cannot be sure that I will remain immune from a frivolous, but nonetheless debilitating, legal suit from Rogers relating to this web site. Very often the legal merits of a case are not what allows it to succeed, but rather the depth of the pockets that fund each party’s legal suit. As elsewhere remarked upon, a party with humble resources and a stellar case can be swiftly exhausted by a protracted legal fight against an opponent with formidable legal resources.
The move by Rogers to embark on a frivolous, but debilitating, libel suit would at least provoke ethnographic interest.
The way that Rogers interacts with the formal court is of preliminary interest.
Unlocking the back doorBack to Top
When Rogers Wireless Inc entered this web site address into the court record in their amended pleadings, Rogers effectively issued an invitation to all Small Claims Court judges who might prospectively be involved in this claim to come and have Tea with (or without) Ted Rogers at my virtual home. I can well anticipate that it would be difficult for a judge to turn away from such a congenial invitation, even if he or she only turns up as a regular old human being after judicially disrobing.
Rogers’ broadcasting of an open house tea party at this virtual home is anomalous given that the web host statistics on visits to www.rogersandme.ca prior to Rogers’ amended pleadings have been significantly dominated by people working for Rogers. This web site was so low under the radar that a judge would have to have had a fetishistic interest in the case to have stumbled upon it.
Ordinarily it would not be appropriate to invite a judge who might prospectively hear one’s case into one’s virtual home. I would never do it. The appearance that one is attempting to thwart the course of justice by plying the judge with tea and tales would be almost insurmountable.
Ordinarily, the opposing party would be right to regard such an invitation – if, for example, it had come from me – as contemptuous of the court and the proclivity of the common law to preserve judicial neutrality. Common law judges, as opposed to civil law judges, are not meant to be inquisitive. They are to confine themselves to the evidence that is formally presented to them by adversarial counsel in strict conformity with the procedural rules relating to proof. And common law judges are to decide the case upon what is presented within the four corners of that formal process.
However, there is a maxim of Roman law that covers such an invitation when it comes from one who might later wish to be poised to complain about it: Nemo allegans suam turpitudinem est audiendus:
“No one alleging his own turpitude as a foundation of a claim or right shall be heard in a court of justice.”
By citing this web site in the court pleadings and thereby drawing the judge’s attention to it, Rogers would be (in less civilian language) “estopped” from arguing that I have attempted to utter prejudicial or provocative remarks through the backdoor to the judge’s private chamber. Rogers has unlocked the door of that serene and lonely room and all but ushered the judge into my virtual world.
Rogers has also opened my virtual home to the public at large.
For the Public Record: Tea with TedBack to Top
By citing this web site in its amended pleadings, Rogers Wireless did more than invite the judge into my virtual home and “estopp” itself thereafter from calling me contemptuous for outlandish and prejudicial (to the court case) statements made herein. Rogers also inoculated the media from potential libel suits associated with their citation of this site:
This web site is now formally part of the court record. As part of the court record, www.rogersandme.ca is now part of the public record. The media, should it feel so inclined, can now cite this web site without fear of the well-endowed legal department of Rogers Communications Group Inc suing for libel. Post August 14, 2006, the media will only be commenting on a matter that is part of the public record.
Speaking theoretically, prior to August 14, 2006, it was hypothetically conceivable that a media outlet could be successfully sued for libel with respect to this web site on the merits of the conjunction of two facts: i) this site itself is libelous and ii) the site is cited by the media outlet or even linked from an on-line web site or blog.
Even if this web site has no libelous content (which I have assiduously attempted to avoid), the threat of an expensive and exhausting libel suit tends to be introduce a layer of sometimes extraordinary caution into the legal departments of the mainstream media.
This caution was manifest with respect to the original Rogers story that broke in the Globe and Mail.
When I pitched the story about Ted Rogers’ cell phone being cloned to a group linked with Hezbollah to Peter Cheney at the Globe and Mail, he was immediately interested.
The story was transparently sensational. But it was also so fabulously scandalous that the Globe and Mail felt the need to exercise extraordinary legal caution before covering it. This was a story, afterall, about the Founder, CEO and President of one of Canada’s most powerful communications corporations having his personal cell phone cloned. It was a story - breaking on a day in December at the very height of the Christmas rush - which a reasonable soul might anticipate could do many many many dollars worth of damage to Rogers Wireless Inc. Get it wrong, and those damages might be attributable to the Globe and Mail.
And here is where the legal inoculation that I mention above (regarding citation of this web site by the mainstream media) comes into play:
The Globe and Mail’s legal department asked Peter Cheney to be absolutely certain that I had entered the CD recording with the revelations about Ted Rogers’ cell phone into the court record on October 11, 2005. That the recording was part of the court record rendered the Globe and Mail immune from prosecution for libel: the paper was merely reporting on something that was already part of the public record.
This use of both court and legislative records to inoculate the mainstream media from a libel suit is well known to the world of journalism.
Inoculating the media from a libel suitBack to Top
A classic example of the intriguing legal entanglements of libel chill, a hugely powerful media mogul, and the inoculation from libel provided by the public record relates to the New Yorker journalist Seymour Hersh.
Although the Israeli character of intrigue, Mordecai Vanunu figures in this account about libel chill, he figures as a peripheral player.
In 1986, Vanunu supported of his claim to the British Press that Israel was developing a nuclear weapons program by passing on inside information he had acquired in his employ as an Israeli nuclear technician.
New Yorker journalist Seymour Hersh uncovered the story that the foreign editor of the Daily Mirror, Nicholas Davies, had tipped off the Israeli Embassy in London about Vanunu’s whistle-blowing. Davies, claimed Hersh, was an Israeli Mossad agent.
But the Daily Mirror was owned by the media magnate Robert Maxwell, who was also reputed to have extensive contacts with Israeli intelligence services. And Robert Maxwell had a tremendously daunting reputation for trigger-finger litigiousness. The British media were cowed out of publishing Hersh’s allegations about the foreign editor of a Maxwell-owned publication by fear of a libel suit.
Seymour Hersh even held a press conference to induce a British media outlet to cover the story of the tainted journalistic practices of the foreign editor of a British Newspaper, to no avail.
Hersh finally managed to succeed in inoculating the media from their fear of a libel suit by having two members of the British House of Commons raise the matter in parliament which thereby rendered the allegations matters of public record upon which the media could fearlessly report as components of the proceedings of state.
The allegations were published and Maxwell subsequently fired the Daily Mirror’s foreign editor.
The defence to libel that one is reporting upon the public proceedings of state also applies to that part of the public record that is constituted by the court record.
Unless there is a specific publication ban on a particular court record, or the court had agreed to the arguments of one party to seal the record, or unless there is a general statutory limitation on reporting (such a on court cases involving minors), journalists can report on what is contained in the court record. This facility derives from the fundamental principle of an open court system that is well entrenched, and flows from a deep history, within the common law.
As Seymour Hersh discovered, a story can be quite apparently sensational and yet difficult to shill to the mainstream media.
Transparently Sensational StoryBack to Top
Both Harry and I were astonished that it took so long for someone beyond the two of us and our immediate circle of friends to notice what an incredible scoop we were sitting on.
On September 27, 2005, Harry Gefen obtained the recording of a manager of Rogers’ Fraud Department telling him that Ted Rogers cell phone had been cloned by a group linked with Hezbollah in 1997. In that same conversation the Manager of Rogers Fraud Department stated that since 1997 Rogers had a computer-generated protocol for dealing with atypical call patterns that involved Rogers calling the account holder and alerting him or her to the pattern, and shutting off wireless services if the account holder could not be reached.
In my opinion, these two revelations about a computer-generated protocol and about the earliest date at which Rogers had such technology in place had legal relevance to my Small Claims Court action:
The Statement of Defence filed by Rogers on October 4 indicated that I had not given Rogers a chance to mitigate hypothetical losses that they had incurred. A sound legal response to this claim is that Rogers had the capacity to mitigate such hypothetical losses in the computer-generated protocol they had themselves installed (at least by 1997).
As the conversation with the Manager of Rogers’ Fraud Department had legal relevance, I burned it into a CD, made my legal argument, and submitted a legal response into the court file on October 11, 2005, with the CD recording as evidence.
I also, consistently with the rules of Small Claims Court, served Rogers’ legal team with this argument and evidence (also on a CD) on October 11, 2005.
And I made a copy of my pleadings and the CD and passed them on to a journalist at the Toronto Star, who we had told about the Fraud forum and the astonishing disclosures about Ted Rogers’ own cell phone.
I was certain that, with this sensational story associated with my Small Claims Court case, Rogers would immediately want to put an end to the claim that I owed over $14,000 on my cell phone. I spent the rest of October, 2005 waiting for the other shoe to drop.
And I was anticipating that the Toronto Star would publish the amazing story that Harry had uncovered.
For reasons that completely escape me, Rogers didn’t respond at all to the scandalous disclosures on that CD. In fact, I wonder whether Rogers legal team even twigged to what was on the CD – even though, at paragraph 35 of my claim, I made an explicit argument about what was contained on the CD in their possession.
In other words, Rogers was sitting on that scandalous and ultimately very damaging material from October 11, 2005 until the story broke on the front page of the Globe and Mail on December 17, 2005 and apparently saw fit to do absolutely nothing about it in the interim!
And the Toronto Star did nothing with the story either.
Harry and I had to settle with entertaining our friends and neighbours, and indeed even complete strangers, with the spectacular story that Harry had uncovered, all of whom, without exception, were bowled over and amazed.
I left for another fieldwork stint in Israel in November, completely baffled that we had not managed to convince Rogers that Harry and I were driving a truck of Rogers’ PR nitro-glycerine around the city of Toronto. And I was baffled that, although everyone that I ran into personally was as endlessly fascinated by my Rogers and Me story as I was myself, the Toronto Star had not seen fit to pick the story up.
In Israel over the prior several months of my other fieldwork project, I had gotten to know the CBC radio reporter Irris Mackler. I took Irris out for dinner when I got to Jerusalem in November and, as per my virtually all of my encounters with friends last fall, I was entertaining her with stories about my Rogers and Me debacle.
No doubt because Irris Mackler reports from Jerusalem and the word “Hezbollah” has more salient resonances in that part of the world, Irris kept asking me to go back to the part of the story about Ted Rogers’ cell phone having been cloned by a group linked with Hezbollah.
Irris was riveted by that detail, and the fact that Hezbollah was operating out of Toronto in 1997 and that it had technological capabilities such as cell phone cloning at that early date.
Irris told me that if I could get her a copy of the digital recording, she would break the story, which she immediately and urgently saw as newsworthy.
Upon my return to Canada, I spent the next several weeks trying desperately and unsuccessfully to get the digital recordings sent to Irris Mackler in Israel, buoyed by fantasies of Jan Innes, VP Corporate Communications, picking up the phone to the exquisite Australian accent of "Irris Mackler, CBC reporter, calling form Jerusalem" asking for an official comment from Rogers Wireless Inc about this extraordinarily intriguing story floating around about the CEO's cell phone being cloned by a group linked with Hezbollah way back in 1997.
I was also confronted on my return from Israel with yet another gargantuan invoice that I had to chew up more of my sabbatical disputing. I needed this debacle to come to an end.
Ultimately, in light of the technological hurdles and my yearning for the tranquility of the scholarly life, I decided to give a journalist on Canadian soil one last go at the story. I sent Peter Cheney at the Globe and Mail an email on December 12, 2005 recounting the story about Ted Rogers’ cell phone being cloned by a group linked with Hezbollah. The rest is media history.