I realize people have waited a week to hear my opinion on this case, given my known outspoken stance on Canada's backwards libel laws. For those people who have waited this long, I apologize. My God, there could be dozens of you!
Had the SCC ruled against the defendant, our libel laws would have become even more restrictive. Instead, the SCC has finally recognized that were are not sheep, that we can discern the difference between fact and opinion, that we may reasonably have different perspectives of what the opinion meant, and that the editorialist is not responsible for them even if they are defamatory, unless he was malicious. The editorialist still must believe in what he wrote, and that what he wrote is based on interpretation of facts, but he does not have to believe any and all innuendos other argue to be there.
I realize this is confusing for many people. When we hear the claim of "Libel!" we tend to think that something horrible has been said. I believe this is due to our proximity to the US, where libel law is quite permissive when involving public figures, and has been since the 1960s. In actuality, you can be successfully sued for libel in Canada for writing what seem to be the most innocuous things. And, given that you are considered guilty until proven innocent, and that damage is assumed to have happened, that's not a good thing.
As I have said many times before (see label Libel Reform), Canada's libel laws are quite backwards. We trail most other Western nations in this regard.
To make my point, consider this following piece of fiction as if it were true. Also, assume that the author has any facts right.
"Jane Doe is a backroom operator in my political party and is known to wield a lot of power and to be behind several controversial decisions. From the membership's perspective, there is little accountability and no transparency. We are now in the post-Adscam age. People are expecting political parties to be more open and accountable. We, as members, need to know more about the influential activities of senior people in the party."In Canada, could Jane Doe sue for libel and win? Oh, yes. Jane Doe could argue that even though the opinion expressed is based on fact, an innuendo of the piece is that she was involved in criminal or unethical matters similar to Adscam. As that is untrue, and is clearly defamatory, it's libellous. Pay up!
Now, a judge could also rule that the speech is protected as fair comment. But the point here is that a judge could also rule for the plaintiff. Either way, the legal bill would be large, and, in Canada, even when you win and are awarded costs, you still end up paying for half your bill as costs awards do not cover all of your expenses.
And yet, is not the opinion, based on fact, reasonable? Do you not see that it is opinion? Are you not free to disagree with the opinion, or even ignore it?
Canadian libel law has been treating us like stupid peasants. We are not slaves to other people's opinions, and we do not need to be protected from them. Likewise, the subjects of needed public discussion have to accept that there's going to be published dialog asking questions about them, and speculating. Up until now, they have been protected by a libel law granting them almost aristocratic status. Criticize them, ask questions about them, speculate about them, and, unless they gave leave, they could libel chill your words right off the paper or computer screen they are written on.
Well, with this new ruling, that's gotten harder to do.
The ruling text is available here.
As I read the ruling, the legalese that jumped out at me was this (bold emphasis is mine):
Simpson's argument on this point therefore runs as follows. Although the trial judge found Mair had an honest belief in the comment Mair subjectively thought he was making (that Simpson is a bigot), there was no evidence that he honestly believed the innuendo imputed to his words by the trial judge (that Simpson "would condone violence toward gay people"). On this view, if Mair had simply sworn that he honestly believed that Simpson condoned violence (leaving aside the debate about the ambiguity of the word "condoned"), he would have had a good defence. However, Mair undermined his own legal position (so goes the argument) by persisting at trial in talking about Simpson's alleged bigotry and intolerance with the result that he was never asked in chief or cross-examination about his honest belief in the pleaded innuendo that Simpson condoned violence. He stuck to his belief that "Kari Simpson is not a violent person." It seems to me that defamation proceedings will have reached a troubling level of technicality if the protection afforded by the defence of fair comment to freedom of expression ("the very lifeblood of our freedom") is made to depend on whether or not the speaker is prepared to swear to an honest belief in something he does not believe he ever said.
My lawyer in the Crookes matter, Dan Burnett, was the lawyer representing the defendant in that case. Canoe.ca had this to say from Burnett:
Vancouver media lawyer Dan Burnett says the Supreme Court of Canada decision revives the law of fair comment and clearer freedom of speech.
"If you give the public credit to understand an opinion when they see it or hear it, they know they can size it up for themselves and why wouldn't you have a wide-open debate and permit some opinions even if they're uncomfortably extreme?" said Dan Burnett, who represented the radio station at the appeal.
Burnett said the ruling will create a more objective approach toward defamation or libel actions in the courts.
He said the court has removed the notion of fairness being the test for fair comment in media opinion pieces.
"Those kind of lead to censorship," he said. "It's a very welcome decision."
What exactly did the defendant say? This is what he said on the air (words spoken over radio are consider libel not slander) that sparked the lawsuit:
I really hate to give Kari Simpson any more publicity, something she soaks up like a blotter, but she's become such a menace I really think something must be said. … Now I'm not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really — in the speeches, when you think about it and look back — neither did Hitler or Governor Wallace … Whether she realizes it or not, Kari has by her actions placed herself alongside skinheads and the Klu Klux Klan. … Kari Simpson is thank God permitted in our society to say exactly what she wishes, but the other side of the free speech coin is a public decent enough to know a mean-spirited, power mad, rabble rousing and, yes, dangerous bigot when they see one.Simpson was at the time an active citizen organizing people to oppose children learning in their schools anything about alternative lifestyles.
Like my example above, although the author was not claiming that Simpson was or would condone violence, a judge had determined that defamation could be seen to be done by innuendo. As the innuendo was different from the author's stated belief, the legal argument at that time was that the author had thus published a defamatory opinion he did not believe in.
Now, thanks to the SCC, such tortured reasoning is no longer possible.
(To read about the state of fairs before this decision was made, please go over to TheCourt.ca and read what they had to say about this case last year.)
As this ruling widens the fair comment defense, it may have a positive impact for the defendants in the upcoming Crookes Openpolitics libel suit.
I am not sure how much it affects the Liberal's defense against Harper's libel suit. I still think issues concerning privilege should and will dominate those proceedings.
--
Posted By Mark Francis to Section 15 at 7/03/2008 11:04:00 AM
No comments:
Post a Comment