The below is a response written by Matt Flannagan on Peter Aranyi’s blog*.
Peter, I think this analysis is in places misleading. You write:
“In their affidavits to the court they claimed ‘distress’ at reading what another blogger/ex-friend wrote about them on her blog. They claimed it amounted to harassment. Judge Harvey agreed that the statements and “the combative and aggressively critical tone of her [Ms Sperling’s] blogs” were likely offensive, even meeting the criteria of ‘specified acts’ in terms of the Harassment Act (I might be seen as guilty of that myself, btw).”
This grossly understates things.
Peter’s post has a lot of short quotes.
The judgment states that Sperling’s comments were more than just “aggressive and critical”; it states they were arguably defamatory and some even accused Flannagan and Brown of criminal and other unlawful behaviour.
Judge Harvey notes, for example, that Sperling falsely claimed Brown had falsified evidence for a court , repeatedly made false allegations of rape  . Harvey notes that Ms Brown had had a suicide attempt and Sperling taunted her about whether she would attempt suicide again  and . At  he notes Sperling falsely publicly claimed Brown had been “misleading the police and that she was being investigated for false complaints.” He notes at :
“These remarks could be clearly interpreted as an innuendo that Ms Brown had engaged in behaviour that invited or encouraged sexual activity or sexual assault. This for Ms Brown was particularly offensive given that she had been the victim of a violent rape when she was 14 years old and had been diagnosed with post traumatic stress disorder and has had counselling to deal with the problem.”
Similarly with Flannagan, he notes Sperling falsely accused her of being a drug addict, of doctoring evidence in a court proceeding to frame a man for rape, and was derelict in her duties to the court.
It would have been more accurate to point this out rather than portraying each of them as complaining merely about “aggressive and critical comment.”
Moreover, to count as specified acts of harassment, as these things were found to be, it was not enough that they be “critical or aggressive” these things have to be part of a pattern of behaviour targeted at the complaints. They have to be offensive, objectively so, there has to be several of them and they have to have been left in a place where the applicants would find them or be brought to their attention.
Judge Harvey found instances where Sperling’s comments met all these criteria. So the suggestion that he simply found she had used an “aggressive and critical” tone, really distorts the situation to your readers.
You go on to state Judge Harvey:
“But the static or passive blog post cannot, in my view be causative of distress and it cannot be said to be so if a person accesses the material by their own act of choice. By that act that person has taken the communication flow out of the control of the blogger and has assumed control of it.” 
This is out of context. You quoted the first half of , here is the full context:
“ I return to my discussion about the static nature of blog based information and the issue of communication flows. As I observed, the blogger publishes a post to an unidentified audience. It does not intrude into the “space” or apprehension of a person who may be offended by it or about whom it may be written. The communication flow stops with the posting. The blogger may take further steps to bring the post to the attention of another person who will direct it to the applicant or may convey the communication to the applicant. In that case the causative link is clear. But the static or passive blog post cannot, in my view be causative of distress and it cannot be said to be so if a person accesses the material by their own act of choice. By that act that person has taken the communication flow out of the control of the blogger and has assumed control of it. By the same token the person has interrupted the chain of causation envisaged by s 4(2)(e) which all require positive steps or understandings by the blogger.
 In this case, as I have also observed, there was an awareness, real or mistaken, that the applicants were accessing her blog, meaning that Ms Sperling, by posting the blogs which I have identified knew that they would come to the attention of the applicants. In that respect the line of causation and the communication flows remain within the purview of s (4)(2)(e).”
In other words, he argues in and of itself that publishing comments on a blog cannot cause distress; however, in the next paragraph he argues that in Sperling’s case, given she knew the posts would likely come to the attention of the applicants, this argument does not apply.
Quoting a paragraph and neglecting to point out the next one actually qualifies the point and says the opposite inaccurately portrays the judgment.
You then state:
“So, while Brown-Flannagan may have been distressed (or not, see below) he showed that for the most part, the plaintiffs themselves navigated to the blog to read it.”
This again is inaccurate. Here is what Judge Harvey actually said:
“Finally on this aspect of Ms Brown’s case, I do believe that notwithstanding Ms Sperling may have known or suspected that Ms Brown was accessing the blog, there were occasions when Ms Bown did so of her own choice. That seems to me to lead to the conclusion that it was her actions in accessing the material that may have contributed to the distress she suffered.”
Here he states that although Sperling knew Brown was accessing the blog, and so the argument you cited from  did not apply, there were “some occasions” where Brown did so by her own choice.
This is not the same as saying “for the most part” they accessed her blog; in fact, it is inaccurate to say that both in reality and based on what the judge said.
You then state:
“So, as I read the judgement, the ‘instrusive’ and ‘causative’ tests required for the comments to be actionable under the Harassment Act were not met.”
Actually Harvey discusses this very point, here is what he says:
“ In this case it was clear that Ms Sperling was writing a blog with the intention of drawing an audience or informing an existing one. There seems to be little doubt, given the nature of the comments that were made particularly in terms of the identification of Ms Flannagan by one of her commentators and by virtue of the fact that as far as Ms Flannagan was concerned she sent a link to her blog to Ms Flannagan’s employers but as far as Ms Flannagan was concerned she was aware that the contents of the blog would be bought to her attention.
 As far as Ms Brown is concerned Ms Sperling was well aware that Ms Brown was an active member of the “blogging community” and members of that community reading her blog would be likely to draw Ms Brown’s attention to the posts that had been made. Furthermore there can be no doubt Ms Sperling was aware that the posts had been read. She claims that her awareness was prompted by anonymous comments that she attributed to Ms Brown or Ms Flannagan. My view is that she was aware of their concerns because of their communications to her in early attempts to have her remove the offending posts. In addition, given the continuum nature of her blog it was foreseeable that having become aware of the existence of offending posts Ms Flannagan and Ms Brown would continue to visit the blog either to ascertain whether or not the posts had been removed and in doing so would have located further posts about them.
 I have made reference to the fact that both Ms Brown and Ms Flannagan accessed Ms Sperling’s blog. In some circumstances such access was as a result of information that there was material on the blog about them. In others there was access to see if material had been taken down. However, it does appear that there has been access to the blog that amounted to seeking out further incidents where reference may have been made to either applicant. Those occasions of access could be termed “putting themselves in harm’s way” and go some way to mitigating the “sting” of the remarks which might otherwise not have come to their attention. …”
Here he finds the intrusive test was not met, in some cases, but in many cases it was. This, of course, has to be the case because he finds 14 specified acts of harassment occurred and the intrusiveness test needs to be met before one can identify a specified act. What he found was the intrusion did not cause sufficient distress; that is a different issue.
This is very important!
Sperling claims that the judgement exonerates her. The fact is quite the opposite – all but one of the tests for the requested order were in fact met.
You go on to state:
“there may have been distress’ (Brown) and ‘[Flannagan] contributed to her own distress, if indeed there was any‘ remarks for what they are: pointers that he kinda-sorta found Ms Brown’s and Mrs Flannagan’s claims of ‘distress’ implausible
Again, context helps. Here is the fuller citation:
“ Once Ms Sperling’s blog turned its sights on her, Ms Flannagan, like Ms Brown, engaged and was prepared to enter the lists with Ms Sperling. In view of her awareness of the, at times heated, nature of the debate I consider that a reasonable person may well conclude that she might get burned. In addition she made unprompted visits to Ms Sperling’s website and in that regard could be said to have contributed to her own distress, if indeed there was any.
 I say that about Ms Flannagan perhaps a little more confidently than I would about Ms Brown. I accept that Ms Brown is a little more fragile than Ms Flannagan, but she has “put herself out there”, has engaged and in my view must expect to attract publicity and comment. Ms Flannagan, on the other hand, presented as confident and robust, articulate and, having regard to the interests with which she is involved, well able to handle herself in debate. In my view a reasonable person in her circumstances would not be distressed by the posts with one exception. I am of the view that the post about her pain killer addiction which was forwarded to her employers would have been subjectively and objectively distressing. However, it does not justify the making of a restraining order. Ms Flannagan has had an opportunity to explain her position with her employers and it appears that the matter is behind her.”
Just after making the comment you cite Judge Harvey states that in he did find some of Flannagan’s claims about distress plausible. The attacks on her employment were the primary concern Flannagan raised; they were not a trivial feature of her application and they were well documented. He failed to grant the order because Sperling was not believed by Flannagan’s employer, not because there was no distress caused by Sperling.
It seems to me that your analysis attempts to whitewash Sperling’s quite shocking conduct, minimise what she did as “critical comment”, and exaggerate Judge Harvey’s criticisms of the applicants. I refer you to your own comments:
“If you have something you want say, and say it strongly, go for it. Just be aware, as I have noted on a few comments, it’s not OK to accuse someone of criminal actions unless you have evidence (a pretty high standard is required, naturally) nor, as a matter of the tone of the site, to make unsubstantiated character attacks (“Liar”, “Conman” etc.) Share your opinion (and your experience please) sure, but don’t go nuts.”
When Sperling makes multiple public accusations of criminal and unlawful and false conduct without evidence, and Judge agrees she did this, those who complain are trying to merely stop “critical comment”, make her pay.
She falsely portrays herself as the victim, and your post does not help in that regard, yet Judge Harvey made it quite clear that this is not his view. After alluding to Sperling’s attempts to “cast herself as the victim of harassment by Ms Brown and Ms Flannagan” in her affidavit he writes, following a summary of the evidence,
“ Ms Sperling’s assumption of the role of victim in this mater in my view cannot be justified. One only has to look and critical tone of her blog postings to understand this. When criticised, it is my view that she tends to counter attack and rather than address the substance of the comment and will move the debate into a personal attack.”
He made that quite clear in the courtroom too by making the unusual step, which he acknowledged he was not in the habit of doing but would make an exception to do in this case, of telling both applicants that they each had his sympathy as he left the courtroom.
Sperling has not provided a shred of evidence that stands up to scrutiny for any of the false claims she has made and repeated to make, some of which have been made on your blog. Her statement above that she did not publish the first of her false and defamatory “pain drug addict” comments about Flannagan on her blog until after she emailed Flannagan’s employer; therefore Flannagan is not being honest when she claims her employer saw it is false.
First, I have heard Flannagan’s employer speak of having seen it, as well as all the other false and defamatory comments Sperling published. Secondly the screenshot of the first of these comments was provided the court in the affidavits Sperling has been served copies of; it clearly shows the date of the first pain drug addict comment as 26 January 2012, compare that with the header from the email Sperling sent Flannagan’s employer:
From: Jacqueline Sperling
Date: 27 January 2012 09:55
Subject: Madeleine Flannagan
Judge Harvey stated in the judgment that Sperling’s claims to have done nothing to either applicant, that she did not identify either applicant on her blog prior to their filing against her is “disingenous” as she clearly did.
Most emphasis above is mine.
* No, I hadn’t heard of him either.
This post is about Jacqueline (Jackie) Sperling, and is part of an ongoing series discussing her ongoing campaign of harassment and lies against lawyer Madeleine Flannagan and Ms Brown, and The Narrative – the alternate reality she presents on her blog in which she pretends to be the victim of her targets. You can read a court decision that outlines her campaign and the court’s assessment of The Narrative here.
Please do not place abusive comments on her blog, phone her, or approach her or her family as she will blame this on her victims.