Did The Respondent Control the Zundelsite?

V. DID THE RESPONDENT, ERNST ZÜNDEL, CONTROL THE ZUNDELSITE?

A. Background

[13] The issue in this part is whether Ernst Zündel is the proper Respondent. Did he communicate or cause to be communicated the material found on the Zundelsite, that is, was the Zundelsite under his control at the material times embraced by the complaints?

[14] At the outset of the hearing the Respondent applied for a stay, alleging that, for a variety of reasons, the complaints were not properly before us. Leave was sought to lay the foundation for the motion by calling Ingrid Rimland of California, who, it was said, was the creator, controller, editor, publisher and author of the materials on the Zundelsite. The purpose of calling this witness presumably was to bolster the affidavit evidence filed in support in the motion to support the argument that control of the Zundelsite was solely in her hands.

[15] In effect the application, if acceded to, would have constituted a summary dismissal of these proceedings. At the conclusion of argument, we ruled that it was not appropriate to hear the evidence of Ingrid Rimland at that time. During the course of the hearing on the merits the Respondent was of course, at liberty to call Ingrid Rimland with respect to the issue of control of the Zundelsite. As well, the Respondent was free to address the control issue himself. Neither gave evidence at this hearing.

[16 The affidavit materials filed in support of the preliminary motion do not form part of the record on the merits of these complaints.

[17] We have, therefore, been left with the task of resolving the issue of control based on the evidence put before us by the Commission.

B. The Zundelsite Documents

[18] The documents compiled in Exhibit HR-2 were downloaded from the Zundelsite. A review of these documents provides a series of direct references to Mr. Zündel and his implied relationship to the site.

[19] In the first document, "Did Six Million Really Die: Truth at Last - Exposed." there is a forward entitled "Zündel's Story", addressed "To all Canadian Lawyers and Media Representatives". At the conclusion, authorship is claimed as follows:

(Signature)

Ernst Zündel, Publisher

SAMISDAT PUBLISHERS LTD. Comments are invited through email at ezundel@cts.com.

[20] The documents contain a number of other frequently repeated references to Mr. Zündel's personal involvement. There is an invitation for comments to be sent to ezundel@cts.com, and a solicitation for donations to be forwarded to "The Zündel-Haus" at 206 Carlton Street. Some of the documents include an exhortation to the reader to "…exercise your rights and duties as free citizens…contact me for further information, interviews and arrangements for public speaking appearances" below which the Respondent's name, address and phone number are provided. Finally, on the upper left corner of the ZGrams, a logo is printed consisting of a black square in the centre of which there is a white circle containing a configured "Z" which arguably suggests a swastika. Next to the logo there is a statement referring to "…the repressive Canadian government that penalizes free expression…" followed by the words "I need to claim protection".

[21] There are also individual references in specific Power Letters and "ZGrams" that connect Mr. Zündel to the site that bears his name. In fact, the text is repeatedly expressed in the first person singular, and the Power Letters are signed by Ernst Zündel and claimed at the outset as the "Personal Opinions of the Author".

[22] For example, the document found at Exhibit HR-2 tab 8 begins,

My name is Ernst Zündel. I am a Holocaust Revisionist. I dare to think and express forbidden thoughts.

[23] Similarly, in Exhibit HR-2 tab 9 which contains correspondence posted to the Zundelsite from Jamie McCarthy of Nizkor, Ernst Zündel responds:

I am very interested in a civilized Internet exchange on matters pertaining to the "Holocaust". I purchased a website because, by its very nature, it allows for such an exchange.

[24] As a further example, the November 1995 Power Letter states:

My webmaster compiled some statistical information, and I must say the data are (sic) astonishing. Since we opened our "Zundelsite" for global perusal in mid-August, more than 11,000 people have dropped in. (5)

[25] The February 1996 Power Letter states, "The Zundelsite is named after its founder, Ernst Zündel (sic), a German-Canadian Human Rights activist." (6)

[26] Finally, the September 1996 Power Letter refers to a press release that announces:

Toronto-based publisher and producer Ernst Zündel, globally regarded as the foremost spokesman for the ever-broadening field of Historical Revisionism, announces the simultaneous Russian-language release of the Revisionist best seller 'Did Six Million Really Die?' in both hard copy and electronic form on his embattled but widely acclaimed 'Zundelsite'. (7)

[27] In contrast to these links to Mr. Zündel, the following disclaimer is found at the end of the Zundelsite Table of Contents:

The Zundelsite, located in the USA, is owned and operated by Dr. A. Rimland, an American citizen. The Zgrams are the copyrighted property of Dr. Ingrid Rimland.

C. Irene Zündel Evidence

[28] Ms. Zündel married Ernst Zündel on March 14, 1996, and was separated from him on July 11, 1997. During that period she lived with him at 206 Carlton Street in Toronto and assisted him by typing letters, word processing and researching certain topics. She also made corrections and suggestions to improve his publications. She testified that Mr. Zündel wrote an English and a German Power Letter each month and that she helped to proofread these documents. She identified a group of Power Letters and identified Zündel's signature in each of them. (8)

[29] Zündel hand wrote the Power Letters and faxed them to Ingrid Rimland in San Diego for word processing. The documents were then e-mailed to Mark Lemire, a part-time employee who worked at the Carlton Street address in Toronto, to be reproduced and mailed.

[30] Each morning Zündel checked his fax machine for ZGrams typed by Ingrid Rimland, which he would then peruse and correct in longhand. They were then sent back to Rimland to be posted on the website. Zündel wanted editorial control over what was to be posted, and sometimes he would entirely re-write a ZGram submitted to him.

[31] Each month, Zündel paid Rimland $3,000, by cheque, for her services, and to cover the website charges, rent, utilities and office expenses. Samisdat Publishing, Zündel's company, was the vehicle through which employees were paid. Zündel raised money through donations that came from 42 different countries.

[32] A letter was put to Irene Zündel, dated August 4, 1997, which suggested that she was considering creating a website for the Respondent. This was an idea that they had considered which involved emigrating to the United States where Zündel would not be persecuted. The new site would be called the Voice of Freedom and the Zundelsite would be phased out. The disintegration of the marriage interfered with this plan.

[33] Irene Zündel gave further evidence concerning a copyright issue regarding the Zundelsite materials. She objected to the copyright granted in February of 1997. She was concerned about the financial consequences if the proceeds of the site went to the "owner". Zündel wanted Ingrid Rimland to own the copyright and be the owner of the siand on the website.

[34] In cross-examination Irene Zündel admitted that certain communications authored by her and sent to Ingrid Rimland referred to the Zundelsite as "your website". In one communication Irene Zündel said to her,

You work for us and we pay you. We are going through all this huge court expense to defend your website, or the website that is your job, to defend your job, your website, and ensure your financial future. (9)

[35] Undoubtedly the feelings between Ingrid Rimland and Irene Zündel were high during this period. Irene Zündel testified that Rimland acted more like a lover who was trying to "interlope in my marriage". These feelings it is suggested, prompted her to send an anonymous letter calculated to have Ingrid Rimland deported. These communications contain a considerable amount of vitriol that arguably demonstrate Irene Zündel's state of mind and the degree of animus she bore towards Ingrid Rimland. She stated, however, that her desire during this period was to work together with Ingrid Rimland on the website.

[36] During the time that Irene Zündel lived with Ernst Zündel she was undoubtedly enthusiastic in defending the cause espoused by Ernst Zündel. She objected to him being called a hate-monger and contended that he should not have been labelled that way, rather, he was, as he called himself, a Revisionist.

[37] It was put to the witness that she came to the Tribunal motivated solely by her desire for vengeance against Ernst Zündel and Ingrid Rimland. It was she who formerly expressed strong, logical and rational reasons why these very proceedings were morally repugnant to her, views that were expressed in writing. The response she offered was that her entire view of Ernst Zündel and his work had changed because Ernst Zündel was a very different man than he represented himself to be. She now saw his political agenda and his work in a different light. More and more she came to believe that Zündel addresses and supports issues that are right wing, extremist, violent, terrorist and war-like. Her opinion, her ideology and her sympathy for him have changed. After living with him for a year, and having come to know him, she felt that he was not as principled as he contended.

D. Analysis

[38] Section 13(1) of the Act requires proof on a preponderance of evidence that the Respondent controlled the Zundelsite. That is, he alone, or acting with others, communicated, or caused to be communicated the material found on the Zundelsite. [39] In our opinion the Act does not require proof of legal ownership of the website, sole or otherwise. Rather, the inquiry is whether the Respondent, acting alone or in concert with others, caused the offending documents to be communicated. [40] The appropriate place to begin the analysis of the evidence is by examining the materials posted to the Zundelsite itself. According to the evidence of Irene Zündel, which was uncontradicted on this point, the book of Zundelsite documents tendered by the Commission as Exhibit HR-2 were properly identified as having been posted to the Zundelsite. [41] A reading of those documents, the manner in which they are formatted, and their wording, leads us irresistibly to the conclusion that the Respondent exercised a significant measure of control over the website. The use of the term "Zundelsite", the logo, the grammatical use of the first person, his signature, the identification of the Respondent's address in Toronto at 206 Carlton Street, and asking that comments be directed to his e-mail address, all support the conclusion that this is Ernst Zündel's website. These communications are largely personal in form between Ernst Zündel and the public who have access to the website. It is he who was ultimately the author of the Power Letters, portrayed as his communication and opinion. [42] In a Z-Gram dated August 30, 1996 Ingrid Rimland writes,

Ernst has asked for some private time to take care of a family matter; I have no way of reaching him to double-check my thoughts and make sure my hot pen does not get him in trouble.

…Sorry, folks, that this column is such a mishmash of unconnected items, but then Ernst is not available to check my work against his frame of reference of what is good or not-so-good to say, I feel like a cat without whiskers. (10)

[43] This and other correspondence between Zündel and Rimland demonstrate his control over the Zundelsite and his authority over Rimland. Zündel had the ultimate say on what was produced. Indeed, in a letter to Zündel dated February 26, 1997, Rimland complains about her subordinate role,

I am not saying your work is meaningless. I am saying my work is meaningless because you have reduced me to a typist… I know what I can do if only you would let me. (11)

[44] We are not persuaded that the inclusion of a single disclaimer found at the bottom of the Table of Contents on the Zundelsite is sufficient to displace the overwhelming evidence of control in the hands of Zündel. We would also note that the Act specifically contemplates that individuals might act in concert to communicate messages that contravene s. 13(1). Even if Ms. Rimland maintained some level of control, the evidence supports the finding that, at all material times, she was acting in concert with the named Respondent.

[45] We have regarded the evidence of Irene Zündel with circumspection. Standing by itself, one would have misgivings about the reliability of that testimony. For a time, Ms. Zündel openly supported and defended Ernst Zündel's conduct and beliefs. In a rather dramatic transformation, she now testifies in support of the Complainants. Moreover, the marked transformation in her feelings for Ernst Zündel, going from love, affection and support, to contempt and rejection were, at least in part, as a result of the relationship Ernst Zündel enjoyed with Ingrid Rimland.

[46] Arguably, therefore, one might consider dismissing her evidence as motivated wholly by scorn and revenge. There are, however, two factors that operate to mitigate those considerations and to enhance Irene Zündel's credibility. First, her testimony is consistent with our observations and conclusions drawn from the Zundelsite documents themselves. In that sense, therefore, Irene Zündel's evidence is corroborated by what is contained in the documents.

[47] Secondly, notwithstanding concerns about her motivation, we are inclined to find that she was a credible witness. She came to the Tribunal voluntarily, albeit encouraged to do so by the authorities. She underwent a long and detailed cross-examination that, in our view, did not significantly undermine the basic facts of her evidence. She was in a position to give direct evidence concerning Zündel's control of the Zundelsite through an important period between March 14, 1996 and July 17 of 1997. While she had a definite axe to grind, we have come to the conclusion that she spoke the truth with respect to the issue of the measure of control that Ernst Zündel exercised over the site and what went on at the Carlton Street address. It seems clear from her evidence that Ingrid Rimland and Mark Lemire were paid employees of a company, Samisdat, under the control of Ernst Zündel.

E. Finding

[48] Based on all of the available evidence put before us in this hearing, the documents and the evidence of Irene Zündel, we find that Ernst Zündel controlled the Zundelsite and that it was he who caused the materials found on the website to be communicated.

[ Reason for Decision ]

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