Halifax, NS Almost two years to the day after Trout Point Lodge and is chef/proprietors Vaughan Perret and Charles Leary received a record $427,000 defamation judgement against a homophobic blogger from Mississippi in Nova Scotia Supreme Court, Justice Kevin Coady has issued his decision involving copyright infringement and further defamation by the same defendant, Douglas K. Handshoe.
In that time, Perret & Leary attempted to have the 2012 Canadian judgement enforced in the United States, only to have both a federal district court and the U.S. Federal Fifth Circuit Circuit Court of Appeal block such an outcome under the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, a federal statutory law that makes foreign libel judgements unenforceable in U.S. courts, unless those judgements are compliant with the U.S. First Amendment.
The Fifth Circuit ruled in September, 2013, in a case of first impression for the new blocking statute in the United States.
Today, Justice Kevin Coady awarded the plaintiffs an additional $390,000 in general, aggravated, and punitive damages against Mr. Handshoe for defamation and under the Copyright Act. Particularly notable is the award of the maximum possible in statutory damages for copyright infringement of $20,000 for each work being infringed. Perret and Leary had alleged the violation of their copyright in four photographs that Mr. Handshoe repeatedly published on his web site without permission. Justice Coady awarded the maximum allowable of $80,000 in statutory damages, but did not stop there. He also awarded the three plaintiffs $100,000 in punitive damages. Punitive damages are very rarely awarded in copyright infringement cases. The judge determined Handshoe’s “Slabbed” blog was a commercial enterprises.
Justice Coady wrote: “The evidence as a whole establishes that Mr. Handshoe was using these photographs to destroy the business interests of Trout Point Lodge, Charles Leary and Vaughn Perret and in doing so enhance “Slabbed’s” credibility as an investigative organization.” In awarding the punitive damages, the judge stated: “I find that Mr. Handshoe’s conduct towards the applicants over the past few years amounts to ‘outrageous and highly reprehensible’ conduct.”
The Supreme Court decision, released today, repeated language from Perret and Leary’s claim, including:
Mr. Handshoe has continued to repeatedly publish words referring to the personal plaintiffs as “girls”, “bitches”, “bottom boys”, “wives”, “perverted” and “queer fag scum.”
Trout Point Lodge was described by Mr. Handshoe as a shell company used for the purposes of a criminal conspiracy including money laundering.
The applicants were part of an international criminal conspiracy designed to silence the investigation of their own criminal wrongdoing. Also that their Nova Scotia legal proceedings were criminally motivated and fraudulent.
Conscious of the unfavorable federal court decisions in the United States, Perret & Leary took steps to ensure that in their court pleadings as well as 2 days of hearings held in December, 2013, that this 2014 Nova Scotia judgement will be viewed as compliant with the U.S. First Amendment. This included presenting affidavit evidence and sworn testimony as to the falsity of all of Mr. Handshoe’s publications. Unlike the earlier lawsuit, Handshoe participated extensively in the 2013 proceeding.
In addition, the SPEECH Act provides no protection to Mr. Handshoe over damages for copyright infringement.
In fact, in discussing the SPEECH Act, the sponsor of the legislation in the U.S. Senate, Senator Patrick Leahy of Vermont, has publicly stated: “Copyright protection is not inconsistent with free speech. It actively advances the goals of the First Amendment by supplying the economic incentive to create and disseminate ideas. Justice O’Connor famously wrote that copyright law is the very ‘engine of free expression.’”
“As United States citizens who are also Canadian landed immigrants, we have serious concerns about how the U.S. Federal courts have applied the SPEECH Act legislation,” said Charles Leary. The Act, as it now stands, completely destroys longstanding principles of comity between the U.S. and Canada, the world’s largest trading partners.” Perret, who graduated from Cornell University Law School, noted that in its notes on the SPEECH
Act legislation, Congress said “One qualification is necessary: The Supreme Court has reserved decision on whether the plaintiff must prove falsity if the he or she is a private (rather than a public) figure and the statement concerns a private matter. That narrow category of cases is not likely to be implicated by H.R. 2765; but if it ever were to be, the courts would be able to address the question.”
Perret and Leary maintain that they are private figures, and that both the federal district court and the court of appeal failed to address this issue, among many others, in their decisions.
“We do not believe Congress intended the SPEECH Act to foster the ability of a homophobic blogger to defame, harass, attack, and embarrass us from across the border with Canada” said Perret.
Notably, Perret and Leary’s business partner, Daniel Abel, has also sued Mr. Handshoe and others in Louisiana civil district court. There a judge dismissed motions attempting to block his lawsuit as a “Strategic Lawsuit Against Public Participation” (SLAPP). This meant that the judge found Mr. Abel was not a public figure and that the allegedly defamatory publications were not on a public issue, allowing the Abel lawsuit to proceed.