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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. augusT 24/31, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713- 4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter It's not about freedom of speech L ast week, a New York Supreme Court judge ordered Google to reveal the IP and e-mail address of one of its Blogger platform users. Said user had fired up a blog called "Skanks in NYC" that took many swipes at Canadian model Liskula Cohen. Cohen took issue with being called a "psychotic, whoring . . . skank" and a "ho" and generally having her appear- ance, sexual conduct, and personal hy- giene maligned. Questionable photos with even more questionable comments about them irked her as well. Feeling she had been defamed, the model wanted to take legal action against the blogger. Problem was, the blogger was anonymous, hiding behind the digi- tal mask that so many commentators don online. Like others in history who have hid- den behind a mask to protect their identities, actions and words that the un- masked would never contemplate freely flow from anonymity of a keyboard. Blogs and comments on news sites and even the blogs themselves are full of off-colour language and pot-stirring missives. She wasn't spewing hate, but the writer of Skanks in New York wasn't exactly Miss Manners either. The questionable post- ings were vicious attacks using cruel lan- guage. In the U.S. anyway, it's protected free speech to say you believe someone is badly behaved. It's another thing to imply incorrectly that the person sleeps around, especially if you know it isn't true. Free speech proponents will say people should be allowed to express whatever opinions they like. But slander and defa- mation are not protected forms of speech. That's been true for the printed word for years, and should be true for the virtual word as well. Simply hiding behind a digital mask should not protect one from facing the music or at least from allowing an ag- grieved party like Cohen to confront their accuser. The arguments about protection of privacy are also specious. Anyone who uses the Internet should know they leave a digital trail behind them. You may only post your username or "handle" online but you can still be traced, tracked, and exposed. Anonymity is just a veil but in combination with a bit of an audience, it can turn normal people into real nasties. And the truth is, people should be held accountable, especially if they're deeply personal and have the capacity to really harm an individual's reputation and abil- ity to work. Cyberbullying or other types of harassment that can lead to injury or even death should also be valid reasons for outing anonymous posters. So should Google be forced to give up information identifying individual blog- gers? The law surrounding this thorny is- sue is in it infancy. The ruling by the New York Supreme Court will start to build case law in this area to create standards for when ISPs or digital media companies will have to hand over information. Google says if the courts order it, the company will provide user's information and remove content found by the courts to be defamatory. This time, Cohen got the e-mail ad- dress of the blogger and found her to be an acquaintance known from dinners and parties. She called her and says she has forgiven her. Perhaps that will be the end of it, perhaps Cohen will still sue. Either way, it's skanks for the memo- ries as the blog has now disappeared into the ether. — Gail J. Cohen A recent legal history collec- tion I have been reading includes an oral history built from interviews with 45 women lawyers, most of whom graduated from law school in Ontario in the 1970s. These women have since become judg- es, academics, law firm partners, politicians, senior civil servants, benchers, even an ambassador. Back then, they were law stu- dents — at a time when barely one law student in 10 was a woman. The story is how those women dealt with that. The central event occurred at a class in the bar admission course at Osgoode Hall in November 1977. The topic was how to hire law office staff. The instructor, distinguished real estate lawyer Albert Strauss, was entertaining the class by handing out typical help-wanted ads: "Beautiful, young, and con- secretary fidential [wanted]," one read. "Unless very beauti- ful, you should be able to take short-hand. . . . You should be a Women at law school, one day in 1977 That's whiz at making good coffee." Included were pointers on getting staff to work for free. Some of the women going to the class had primed them- selves for a confrontation. They peppered the instructor with denunciations of the sexist and exploitative course materials. They seized the microphone to protest. They demanded an apol- ogy. They walked out, throwing the course materials away. The instructor and, apparently, most of the male students struck back. There was hissing and laughter. There were bra jokes. Words like "hysterical," "destruc- tive," and "sarcastic" were flung out with dismissive contempt. "If these people are going to be law- yers, well, good luck to them." The essay is by Constance Backhouse, now a professor and a bencher of the Law Society of Upper Canada, but also one of that class of 1977, and at this point she enters the story herself. As protest and counterattack raged around the classroom, History By Christopher Moore she writes, "Diana Majury and I decided to call the press." The whole thing hit the front page of The Globe and Mail, and the women claimed a small victory. Backhouse's essay has the first- person vividness that eyewitness account, oral history, and memoir can provide. But it also has the stats to demonstrate the change those women were taking part in. After being fewer than five per cent of Ontario law students for decades, women would increase their proportion to almost 30 per cent between 1970 and 1980. It was, Backhouse's interviewees agree, "a revolution in numbers." In 1977, women students were still a minority in a sexist profes- sion, but they were achieving "a critical mass." Most of them had www.lawtimesnews.com no, or few, lawyers in their fami- lies. They came from less pros- perous families than male law students. The opportunity for professional careers seemed entirely new. Most came to law school already holding feminist views. "We were the new wave." Backhouse calls them a "tur- bulent, insubordinate, ambi- tious, free-wheeling cohort of women." What happened when they hit law school? "All of the interviewees, even those who came to law school a decade or more after the earliest entrants in the group, reported sexism, racism, and homophobia ran rampant." As one of them says, "Few women today have the same experience we did of sitting in a room with our mouths hanging open at the level of sexism being displayed." Some of this seems like a sto- ry from another age. Feminism, after all, was hardly new in 1977. Women, feminist messages, and anti-sexism were familiar as- pects of university life a decade before this incident. What is most startling, perhaps, from this and other accounts of women in law in the 1970s is how late and how retrograde the profession of law was in these matters. Backhouse's essay in just one in a new collection called, The Promise and Perils of Law. Jim Phillips studies embattled Hali- fax lawyers in the 1780s. Susan Lewthwaite and Hamar Foster each look at the risks of "cause lawyering" almost a century ago. Eric Adams considers an estab- lishment Toronto lawyer who campaigned for an American- style bill of rights — in reaction to big-government excesses in the Second World War. The topic of Backhouse's essay is one of the most recent in the anthology. Not all history has to happen a long time ago. LT Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm. His web site is www.chris tophermoore.ca.