A New Libel Defense In Canada; For Blogs Too

roju writes "The Globe and Mail reports that the Canadian Supreme Court has created a new defense against claims of defamation, allowing for reporting in the public interest. They specifically included bloggers as eligible, writing: '...the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.' and 'A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. ... [I]t is more accurate to refer to the new defense as responsible communication on matters of public interest.'"

Comments

This doesn't help

[bmo]

This doesn't help when you can be sued in England for blogging in Canada or anywhere else for that matter.

--
BMO

Re:This doesn't help

[phantomfive]

England is getting tired of every offended person coming to their country to try to silence their critics, and thus are considering changing their laws.

A member of the House of Lords is preparing a bill that would, among other things, require foreigners to demonstrate that they have suffered actual harm in England before they can sue there.

They don't like being known for libel tourism.

Re:This doesn't help

[TechnoFrood]

Unless I'm missing some sarcasm,

Porky Pie = Lie

http://en.wikipedia.org/wiki/Pork_pie#Names_and_references

Re:This doesn't help

[digitig]

"Simpler, sure. Completely ineffective though" I think A. C. Clarke would disargee.

I think Arthur C. Clarke understood the difference between Type 1 and Type 2 errors. This being News for Nerds I assumed you would too. Sorry.

I gave an example of a just application of the law, can you give an example of an unjust case or are you just waving your hands? As far as I understand it the UK laws are similar to Aussie laws, the defendant must show why they believe the accusation to be true. This does not mean I can't print a derogatory opinion, it means I can't fabricate evidence and make baseless accusations without risking a law suit. In otherwords, it's simply extending the concept of "innocent until proven guilty" into the fourth estate.

Pretty much all civilised countries have libel laws that work well for the affluent when they have genuinely been libelled. The problem is for the less affluent person wrongly accused of libel. Actual cases are, of course, difficult to cite because they are by their nature disputed. But the fact that the UK is a destination for libel tourism does suggest that either it's easier to win a case here than elsewhere or that damages will be higher. Of course, we might be an outlier because we're leading the way to a better future, but for those of us who believe in free exchange of ideas it does look rather more as if something is seriously wrong.

Re:This doesn't help

[thisnamestoolong]

False. Look into the case of Simon Singh. The statements that he is currently being sued for (and he will most likely lose) are 100% true by any reasonable interpretation of the facts. Even if you are acquitted, you still will have lost hundreds of thousands of dollars (or pounds), as well as a great deal of your time, defending yourself.

Re:This doesn't help

[canadian_right]

One of the big problems with UK libel law is that the truth is NOT an absolute defense. For example, scientist sued by chiropractors for saying unproven treatment is 'bogus'

Re:This doesn't help

[txwikinger-slashdot]

Since libel law in England places the burden of proof on the defendant (this would be unconstitutional in America, due to that pesky "innocent until proven guilty" thing), meaning that Singh now has to PROVE that the statements were indeed bogus. Due to a rather creative take on the English language, the presiding judge decided that to rule the statements bogus, it must be proven that Singh not only knew that the BCA's claims were false, Singh also has to prove that the BCA knew that these statements were false. That is not reasonable. That is insane.

"innocent until proven guilty" is the standard of proof in criminal law, which is the same in US, UK and AFAIK all common law countries. Libel is civil law and the standard of proof in common law is "preponderance of the evidence", i.e the balance of the probability of which side might be just a little more right.

The burden of proof often shifts back and force in civil trials. The plaintiff (claimant in UK) must first make a prima facie case, to which then the respondent would either dispute the facts or raise a valid defense.

The issue in place is what defenses are deem valid in the particular jurisdiction, not who has the burden of proof.

Re:This doesn't help

[Beardo the Bearded]

Face it - if you (or some female relative) is a known prostitute, especially with a long list of convictions related to prostitution, and I should tell people that you are a whore, there should be NO PENALTY for doing so. Stating a fact should NEVER be a crime, nor should it be a civil matter.

And in Canada, it is not. Libel in Canada requires:
1. It must be false.
2. It must be believable.
3. It must do harm to the person.

For example, let's assume that I print "Runaway1956 bench-pressed 200 pounds, even though he could barely do it."

This is probably more than you can bench. Thus it's false, and it's potentially believable. However, it's not doing you any harm since it's most likely inflating your abilities in a nice way.

Now, let's say that you're a professional bodybuilder and you're going for a record next month. That would be harmful to you, so it could be libel.

The new twist is that if I talk to a lot of people who saw you struggling with the weight, then tried to contact you about it to get your side. Then it's no longer libel because I attempted to fulfil the standard obligations of the trade. (This isn't much different than Engineering -- it's okay to be wrong as long as you're not deviating from the standards of the time.) Even if the witnesses were wrong and you were having trouble lifting 200kg after doing 100 reps, I would still not be liable for libel since I talked to witnesses and didn't just make stuff up for the sake of harming your rep.

CBC article has details...

[qvatch]

More details on the CBC site(http://www.cbc.ca/canada/ottawa/story/2009/12/22/supreme-court-libel-responsible-journalism-citizen-star.html?ref=rss), including the actual checklist: Excerpt from Supreme Court ruling The defence of public interest responsible communication will apply where: A. The publication is on a matter of public interest and: B. The publisher was diligent in trying to verify the allegation, having regard to: * The seriousness of the allegation; * The public importance of the matter; * The urgency of the matter; * The status and reliability of the source; * Whether the plaintiff's side of the story was sought and accurately reported; * Whether the inclusion of the defamatory statement was justifiable; * Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and * Any other relevant circumstances.

Re:CBC article has details...

[shutdown -p now]

Oh my, a sane and balanced law? What are they smoking?

Oh, Canada. Nevermind.

Geist's coverage

[roju]

Michael Geist also covers this, writing "This is crucial decision for all publishers both big and small. It represents a major win for freedom of expression in Canada and should remove some of the libel chill that arises far too frequently."

More ephemeral?

[nacturation]

I'd rather have the good old days where something potentially defamatory published in a newspaper went away soon enough rather than these days where anything published online gets archived forever.

Re:More ephemeral?

[Famanoran]

To an extent, yes. However, the key differentiation is that anything on the internet is more accessible - sooner, to a much more wide audience. Most newspapers have microfilm archives available at your local library, so long term archiving is not a factor.

Re:More ephemeral?

[Bartab]

Uhm. Too bad? Time, and technology, marches on and what you prefer really doesn't come into consideration.

I wonder...

[Rivalz]

Sounds like I need to incorporate myself just for my online presence. That way when I get sued for pissing everyone off I can just close my business down. The idea's and expressions are solely that of Legally Inept Inc. a subsidiary of Betcha Can't Sue Me. Please forward all complaints to our legal department trash@inbox.com

How about this?

[Darkness404]

How about doing the sane thing and limiting libel to only really -damaging- things that were intentionally untrue.

For example (using examples from all over the world and not just Canada), the woman that was sued for libel after tweeting that their may have been mold in her apartment ( http://www.chicagobreakingnews.com/2009/07/uptown-resident-sued-for-twitter-post.html ) is not damaging. Twitter, Facebook, etc. should not be grounds for libel unless it was clearly meant to influence a large group of people against something and had no proof. Basically, Twitter, Facebook and even some blogs are akin to people talking in a crowded room, the comments may be untruthful, insightful or just plain random. They aren't meant to be taken seriously.

Truth also should be taken with a grain of salt. The average person isn't an expert on everything, so generally their comments will reflect that. If someone said "Dell laptops are crap, my computer won't even boot up" and the fact is they just did something stupid like erase the MBR, that shouldn't be considered libel because they were not experts.

Re:Truth as a defense?

[pclminion]

So truth as a defense doesn't count?

Nope. My wife found this out the hard way this year. She was sued for "defamatory" statements she made in a formal complaint against a board-certified professional. During the court case, which was before a jury, at the plaintiff's insistence, the issue of whether or not the statements were true was not even a topic of discussion. The only thing that mattered, to both the judge and the jury apparently, was whether my wife's comments caused damage to the plaintiff's reputation. Well, of course they did. That's why they are called "complaints." Bam, $5000 judgment against my wife. Could have been worse -- the plaintiff was asking for $75,000. Thank God our homeowners insurance had our ass. We didn't pay a dime.

I don't see why you'd need something like this

[Sycraft-fu]

I mean there really shouldn't be some special exception saying "It is ok to slander/libel someone in certain situations." No, it shouldn't be allowed. I think the US has pretty sensible libel laws. In particular, there are three defenses:

1) The truth. If what you wrote was true, no matter how damaging, it's not libel. Libel is only untrue statements. So as long as you are telling the truth you can post it for whatever reasons you like, regardless of the harm it causes and have no worry about a successful libel suit.

2) Belief that it is true. If you reasonably believe what you are writing is true, that is also a defense against libel. So if a newspaper publishes a story based on good information that turns out to be false, it isn't libel. They reasonably believed it to be true.

3) No intent to cause harm. The final defense against libel is if you didn't intend for the statements to cause harm. This is generally in the case of satire and the like. If you are writing something you know to be false, but doing so in a way as to poke fun at someone, it isn't libel.

So the only way something is libel is if it is false, you know (or reasonably should know) it is false, and you write it anyhow with the intent of causing harm to your target.

To me, seems pretty reasonable and doesn't seem like any special protections are needed.

Re:I don't see why you'd need something like this

[shutdown -p now]

If I understand the intent of the law correctly, the point here is that, while press also needs to at least try to check their facts for correctness before publishing them, they do not have time enough for a thorough investigation, because we - you and I and million other people out there - demand early, up-to-date news. Hence stringency of fact checking has to be balanced against the need to report current events.

This allows for character assassination

[presidenteloco]

Remember that this new ruling only assists journalists and bloggers whose story about someone is false.

If the story was true, there is no libel, under existing law.

I think it will be easy to put a patina of professional responsible diligence on acts of deliberate
character assassination using lies and incendiary innuendo.

All you have to do is say that you got it from some sources, and tried to reach some sources
to contradict it but couldn't get hold of them by publication time etc. etc.

The media is already manufacturing opinion and making and breaking kings, and this
just allows them to do it using false stories with impunity.

Scary

Re:Truth as a defense?

[Idiomatick]

That was a court case gone wrong, your lawyer sucks.... Or the law wherever you are sucks a lot. In Ontario I do know that truth is absolutely a defense.

Re:Truth as a defense?

[pclminion]

The lawyer didn't suck, but he was definitely not used to trying these kinds of cases. Our insurance assigned the case to a legal contracting company which normally handles all of their auto insurance claims. I asked around, and it turns out that these sorts of legal contractors typically shoot for quick closing and low damage awards. Their goal is not to win the case but to minimize exposure for the insurance company and the defendant. I almost wonder whether this was the planned outcome all along. Because the plaintiff won her case, she can't appeal it and drag the insurance company back through the entire process again. For all I know, that was the strategy on purpose.

I am, however, a bit disillusioned about free speech now. As far as I can tell, there isn't any. It's a lie.

How convenient

[gmhowell]

This is very convenient. Now, not only do I have a girlfriend in Canada, but my civil rights are located there as well. Shame about actually living in the US...

No.

[coppro]

That's not the meaning of this ruling at all. Because this is a defence, you would have the burden of proof. It's your job to show that you did try to contact them and they refused comment. Furthermore, the tests effectively establish that you must have enough information to justify the possibly-defamatory claim as much as is reasonable given the urgency of the issue. You have to prove that you did everything reasonable to determine if then rumour was true or false and then (and only then) went forward with publishing a report of an unsubstantiated allegation.

In theory, you could concoct a large amount of fake evidence to prove this to the courts, but a) it's not easy b) you'd have to convince them that the other plain was lying when he says you didn't contact him c) it's highly illegal (in Canada, the maximum prison term for perjury is fourteen years) d) the same would be possible without this new defence.

Re:Truth as a defense?

[pclminion]

The consequences of speaking the truth and criticizing someone else's unacceptable behavior should not be 10 months of agony and a payout to a person who shows a clear pattern of suing their clients exactly the way she sued my wife. You are an idiot.

Re:What about satire?

[exasperation]

I don't know Canadian law, but if satire is protected, couldn't someone put a small disclaimer on the website?

Satire and parody are broadly protected, but that wouldn't work if the material wasn't actually satire. It's like a terrorist putting up a disclaimer "these aren't instructions on how to build a bomb" while then describing how to build a bomb...

Defamation law in Canada

[telso]

Lots of confusion in the comments, so here's the skinny on defamation law in Canada, taken directly from this judgment (removing citations for readability):

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: [citations]. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: [citation].) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[29] If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

[30] Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some "occasions", like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit reports, enjoy "qualified" privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: [citation]. The defences of absolute and qualified privilege reflect the fact that "common convenience and welfare of society" sometimes requires untrammelled communications: [citation]. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends.

[31] In addition to privilege, statements of opinion, a category which includes any "deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof" ([citation]), may attract the defence of fair comment. As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a "fairminded" person could honestly hold, to a requirement that it be one that "anyone could honestly have expressed" (paras. 49-51), which allows for robust debate. As Binnie J. put it, "[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones" (para. 4).

[32] Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society.

Long story short: prove someone defamed you (defamatory, towards you, published), they're presumed guilty, with onus shifting. To defend themselves, they must prove either 1) the statements were absolutely privileged (from court or parliamentary testimony or documentation); 2) the statements enjoyed qualified p

Obligatory

[Anonymous Coward]

The Porky Pie is a lie!

Re:Truth as a defense?

[moeinvt]

"In Ontario I do know that truth is absolutely a defense . . ."

Apologies for repeating myself, but truth isn't "absolutely a defense" on all questions related to free speech. Apparently it only applies to claims of "libel". Insult a minority and you could find yourself before A "human rights tribunal". Scary.

http://en.wikipedia.org/wiki/Canadian_Human_Rights_Tribunal

Re:I wonder how many times i break the law each da

[SteveFoerster]

Can they yank my citizenship because I'm not totally patriotic to the USA legal system yet?

By definition, everything we do is sort of inherently "yank".

-=Steve=-