Former Maple Leafs General Manager Brian Burke Files Very Stupid Defamation Lawsuit

This was me sitting on the ice at a Flyers / Jets game, toasting a Molson Canadian to Antonin Pribetic. Tickets courtesy of Adam Green.

This was me sitting on the ice at a Flyers / Jets game, toasting a Molson Canadian to Antonin Pribetic. Tickets courtesy of Adam Green.

I love hockey. There are very few sports that are as crazy, violent, and fun to watch. There is nothing more fun than watching the Flyers beat down the Rangers or the Devils. You either get hockey, or you don’t.

Which is why hockey fans are some of the most passionate fans in the world.

And yeah, sometimes I get angry with the management and the players. We call for people to be fired, players to be benched, and regime changes.

Even though we can be a little mean to our sports franchises, especially here in Philadelphia, the coaches and the players make a significant amount of money – enough to console their hurt feelings, I would imagine.

Last night I was very surprised to learn that the Maple Leaf’s former General Manager, Brian Burke, filed a lawsuit against several anonymous internet commenters who made anoymous comments about him on hockey message boards.

According to the “Notice of Civil Claim“, an anonymous internet commenter falsely inferred that Burke had an extra-marital affair with Hazel Mae and may have fathered her child. In my opinion, the statement is very obviously parody and not even the stupidest person in the world could actually believe it, especially when you take into account who said it, the hyperbolic language, and the fact it was made on a hockey message board. (quoting the comment verbatim is messing up the formatting of my blog post. But you can click and read it yourself. Thanks, WordPress.)

What’s more is that the Notice of Civil Claim says that “the Defendants, individually or  jointly, wrote and published, or caused to be published the following defamatory statements about and concerning the Plaintiff”. From what I can tell from the Notice, different users made different comments on different message boards. Yet Burke might be trying to hold all of the Defendants liable for each other’s statements.

Say what?

But do people actually believe every stupid thing they read on an internet forum or in a chat room? I hope not. Perhaps that is why New York courts have held that:

The culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a “freewheeling, anything-goes writing style … In determining whether a plaintiff’s complaint includes a published ‘false and defamatory statement concerning another,’ commentators have argued that the defamatory import of the communication must be viewed in light of the fact that bulletin boards and chat rooms ‘are often the repository of a wide range of casual, emotive, and imprecise speech,’ Sandals Resorts Int’l, Ltd. v. Google, Inc., 27 Misc. 3d 1207(A), 2010 WL 1428266 (Sup. Ct., N.Y. Co. 2010)

In English, that means we have enough faith in society that people don’t believe every stupid thing they read on an internet forum or in a chatroom. Compared to what they read in say, the New York Times.

Canadian defamation law is different than American defamation law, though. The Supreme Court of Canada declined to follow the “actual malice” requirement in NY Times. v. Sullivan in the leading Canadian case: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (SCC). Meaning public figures, like Brian Burke, can file lawsuits against individuals in Canada under the same standard of a private citizen.

Legal issues aside, here is the big question – what is Brian Burke trying to achieve by suing NHL fans? According to Burke’s lawyer, Peter Gall of Heenan Blaikie LLP, “[a] lot of people think that they can with impunity say whatever outrageous things on the Internet and nobody’s ever going to be able to find them or hold them accountable. Brian is going to hold them accountable.”

Um…

The reason General Managers of hockey teams make a lot of money is because NHL fans like me and this anonymous commenter on the internet pay big bucks to watch the games, buy the jerseys, and subscribe to the expensive TV packages. People comment about the NHL on message boards because they love the sport. Part of that commentary is inevitably going to be criticisms of the coaches, the players, and the management. We comment because we care.

This type of lawsuit sets a chilling atmosphere for sports fans who comment, often stupidly, online. Is that what the NHL really wants? What’s next – coaches, players, and management suing hockey fans for defamation because they are critical, or say things that hurt their feelings? Isn’t hockey a contact sport?

And do you think any NHL team is going to want to hire a General Manager who sues NHL fans – the same fans who put money in the league’s pocket? If my Philadelphia Flyers did that, I would boycott the team and refrain from commenting about them. I bet other fans would do the same. The people who comment about the NHL are the same people putting money in the league’s pocket – which goes to the players, management, and guys like Brian Burke.

So, I  hope Brian Burke has been told what the Streisand Effect is. Because I have a feeling Mr. Burke is goingto learn about it very quickly. While I doubt any of the internet commenters damaged his career or reputation, this lawsuit just might.

h/t Adam Steinbaugh.

And just because:

12 Responses to Former Maple Leafs General Manager Brian Burke Files Very Stupid Defamation Lawsuit

  1. My daughter (who is forbidden to go to law school) but who is the hockey goddess of our family told me about this yesterday. She is still laughing – but I spent a good half hour wondering how you get service on screen names. It seems the Leafs are doing just fine without this guy.

    • What you do is serve a subpoena on the blog for the IP address. Once you have the IP address, you serve a subpoena on the Internet Service Provider (like Comcast / Verizon / Roadrunner) to identify the subscriber of the account.

      Then you have to take a deposition to link the person who made the comment to the IP address. The account might be in mom’s name, but the son made the comment. If the comments were made from a coffee shop, or an open wi-fi, it becomes almost impossible.

      Plus, the data spoils quickly. The chances of actually getting the information isn’t always good.

  2. Thanks Jordan. I knew you’d know. Now that hockey season is over, it’s time to shift to baseball. Less fights, but when they happen — look out!

  3. tgt says:

    I understand the parody defense, but the rest of your post seems to be some combination of “lying about rich people is fine” and suggesting that false statements are the same thing as criticism and causing hurt feelings. it’s the exact opposite of what I would expect coming out of this blog.

    • I must have written this using too many big words. Sorry it was hard for you to understand. In the future I will use smaller words.

      • tgt says:

        Maybe I should give you the benefit of the doubt and think you just decided to be a really good Poe. The actual sane reasoning and calling out of bad legal theories at the beginning of the post was a ruse.

        “And is this what the NHL really wants? Coaches, players, and management suing hockey fans for defamation because they are critical, or say things that hurt their feelings?”

        When the things that were actually said were false statements, I think even a simpleton like me is correct in calling out an inappropriate equivalence.

        The paragraph that precedes that quote is the basis for my “lying about rich people is fine” comment.

    • Okay. I will be serious, but only for one post.

      Do you really think people are stupid enough to believe every silly thing they read on the internet, especially when it’s made on a hockey forum?

      If Adam Schefter says something on ESPN, yeah, it might be worth believing. But if say, “Poonerman” says something on a random hockey message board, is anyone dumb enough to believe it at face value? That’s doubtful.

      I have enough faith in humanity that people are smart enough to evaluate the source and weigh it accordingly. The US court system agrees with me. Hopefully the Canadian court system feels the same way.

      Because otherwise, we start holding random message boards to the same standards we would a reputable news source. And no one is that dumb.

      • tgt says:

        “Do you really think people are stupid enough to believe every silly thing they read on the internet, especially when it’s made on a hockey forum?”

        Did you just suggest a minimum intelligence level for people on the internet? Or a minimum amount of skepticism? There’s a reason you guys write posts attacking the horrible advice of failed lawyers: people with law degrees fall for it.

        I have enough faith in humanity that people are smart enough to evaluate the source and weigh it accordingly.

        Like all the people who parrot FoxNews/MediaMatters/[partisan hitjob organization of your choice].

        The US court system agrees with me. Hopefully the Canadian court system feels the same way.

        Yes, US courts think location matters in determining meaning and recognize hyperbole and parody, but I don’t think they agree that just because something is written in the comments of a site that isn’t hard news, it can’t be defamation. Did I miss a ruling?

        Because otherwise, we start holding random message boards to the same standards we would a reputable news source. And no one is that dumb.

        This doesn’t follow. Saying that false factual statements can be defamatory wherever they are posted, does not suggest that all locations are equally reliable. Your argument, again, says that so long as you’re not a paragon of virtue, you can’t be held liable for defamation. It’s silly.

        —-

        In this specific case, I don’t see how Burke could possibly show damages, and, yes, this suit is incredibly stupid, but that doesn’t give you a pass for your invalid arguments in support of that conclusion.

        If I don’t point out bad arguments in favor of positions I agree with, then what moral authority do I have to point out bad arguments in people that are wrong?

    • I will use small words to help you understand…

      The law is supposed to compensate people who are injured, to make them whole again.

      When statements are made on an internet forum by a guy who calls himself “poonerman”, people are not dumb enough to believe they are true.

      Hence, this type of lawsuit seems to be aimed at regulating what people are saying on the internet. It could have a chilling effect on sports fans commenters, who often communicate in a way that is less than formal. Do we really want people who post on message boards, often stupidly, worrying about getting sued? Where do we draw the line?

      In addition, pursuing it may hurt Burke more than the comments at issue did.

      Got it?

      • tgt says:

        When statements are made on an internet forum by a guy who calls himself “poonerman”, people are not dumb enough to believe they are true.

        Repeatedly stating a counterfactual doesn’t make it true.

  4. As a supporter it is not expected from the supported team especially Maple Leafs. If my favorite team can’t play well then it is simple to ask question about management as well as the player. But when found these this means nothing at all.

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