Down to Cases

Flea
#1. April 14th, 2008, at 2:06 AM.

I would be grateful if you might take a moment to let those of us lacking your edumacation know the difference between the simplified process vs the more regular procedure. Or if this is a time consuming proposition, possibly point us to a website that could summarize the difference.

Flea
#3. April 14th, 2008, at 7:07 AM.

Thanks for this. If news reports are to be trusted, I would have thought it would be difficult for a judge to decide this case without discovery. This is, of course, my non-professional opinion…

Sholto Douglas
#4. April 14th, 2008, at 7:53 AM.

Dawg suggested in a previous post here that Warman’s actions were merely a defence of his reputation, not a more general attack on opposing elements of the blogosphere.
However, if this were so he would presumably have left the National Post off his hit list. After all, the subsequent retraction and apology issued by the latter for linking Warman to the Cools posting probably received more coverage than the initial suggestion.
It makes no sense for a serial litigant to defend his reputation by issuing such a pointless writ. It does however make sense in the context of his stated policy of maximum disruption (read silencing) of those he doesn’t like.

WL Mackenzie Redux
#5. April 14th, 2008, at 6:47 PM.

Jay Said: “One of the interesting questions such a defense will raise is whether or not bloggers are, as a matter of law, journalists,”

In my estimation this is the crux of the issue going forward in this flurry of internet libel litigating.

If the test of journalistic due diligence revolves around the concept that a “journaist” is a professional who offers news and opinion for profit and is employed by the corporate media with its research abilities and on-staff legal advice, then NO, Blogging is not professional journalism, not even close.

Is it unreasonable to expect a hobbyist who shares opinion on current events with guests to his personal site to understand HRC’s arcane, ever mutating “hate” guidelines or libel’s legal nuances,…having him scour his content 24/7 for any possible publishing liability and have time for their primary occupation?

There is a reasonable expectation of due diligence commensurate with the degree of sophistication/expertise of the publisher and the motive of his publishing (is it for profit. professional advocacy or amateur casual entertaining).

In any objective analysis casual opinion Blogging by amateurs and hobbyists has no equivalence to corporate published media distributed for profit or as a paid special interest advocacy. They are mutually exclusive motivations which cannot be judged by the same standards.

David
#6. April 14th, 2008, at 11:25 PM.

I’m a BC lawyer, so not familiar with Ontario rules, but suspect there will be several procedural options in the good fight against Lucy:

1. file a counterclaim for more than $50 k.;
2. file a summary judgement application which compels a detailed affidavit from Lucy W., upon which he can then be cross-examined;
3. if the rules offer some discretion, apply for discovery rights. Discovery is obviously important in this case, partly to save days and days at trial.
4. if there’s no other option, use the written interrogatory procedures to the fullest extent possible, though that’s painful and very inefficient.

Bob Tarantino
#7. April 15th, 2008, at 7:03 AM.

Funnily enough, I’m just in the midst of writing a case comment on Cusson v Quan - and while this is all a bit OT, permit me the following: that decision is one of the most disturbing decisions I’ve ever read in the context of defamation law. It essentially validates the right of “the media” (to use the court’s phrasing) to unequivocally defame an individual without any right of recourse on the part of the person defamed - even to the point of permitting the publication of complete falsehoods - all so long as it is “the media” doing it, and so long as they follow the precepts of “responsible journalism” (quite how they engage in “responsible journalism” and yet nevertheless manage to let a few blatant lies slip through is a circle not quite squared in the reasoning). The decision has recently been granted leave for appeal to the SCC, so hopefully it will be overturned, but I doubt it.

truewest
#8. April 15th, 2008, at 8:23 AM.

Jay,
As I’ve said on another thread, the question of whether the bloggers in this case can avail themselves of the Reynolds/Jameel “responsible journalism” defence is sort of moot, since none of them did anything to bring themselves within the defence.
As Sharpe J.A. recognized, the House of Lords set out a non-exhaustive list of factors a court may consider in determining whether the impugned publication was a work of “responsible journalism”. Here’s the list:

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

6. The urgency of the matter. News is often a perishable commodity.

7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

8. Whether the article contained the gist of the plaintiff’s side of the story.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing.

I think there is an argument that bloggers can be journalists and can avail themselves of this defence. But not in this case. They rushed to publish, without attempting to get a response from Warman, relying on evidence proferred by someone with an ax to grind and posted in the most inflammatory manner they could manage. Far from acting as responsible journalists (and this includes you Mr. Kay), they published recklessly and with malice. Unless they can prove Warman posted the Cools post, they’re hooped.

WLM Redux:
So, what you’re saying is that bloggers should get a free pass from the law because, hey, attacking people’s reputation with false accusations is only their HOBBY. Sure, that makes a lot of sense.

Sholto,
An apology and retraction doesn’t absolve the defamer. It only forces the plaintiff to demonstrate actual damages.
Case in point: the Vancouver Sun mistakenly ran a piture of a prominent Vancouver criminal lawyer identifying him as his client, who was facing terrorism-related charges. The paper ran an apology the following day. The lawyer sued anyways and was awarded $35,000 in general damages, plus a portion of his costs. Defamation is a strict liability offence.

truewest
#10. April 15th, 2008, at 9:44 AM.

Jay,
If it walks like a duck, then it should be able to avail itself of the same defences as a duck. So, yes, if an enterprising blogger decides to actually report a story, takes care to get a response from the subject (if that is possible) and meets at least some of the other criteria set out by Lord Nicholls in Reynolds, and despite all that get a few things wrong, the defence should be open to him.
Bob,
I don’t think the decision is going to get overturned by the SCC. Nor, in my view, should it. Like the House of Lords decisions upon which it relies, it recognizes that defamation law places a limit on a free press that, if interpreted too strictly, is inconsistent with the public interest. As for what constitutes “responsible journalism”, I think the 10 factors set out in Reynolds is a pretty good start.
In any event, I look forward to reading your case comment. Where and when is it going to appear?

Bob Tarantino
#11. April 15th, 2008, at 7:15 PM.

Jay - Sorry, but I’m not a litigator so my knowledge of the workings of Rule 76 etc. is pretty much limited to what I learned in law school a lifetime ago…

truewest - Yeah, I doubt it will be overturned as well, but I do think it should be, or at least the court’s rhetoric should be modified and curtailed. The decision seems, to my eyes, to tilt dangerously in favour of “the media”, without taking the time to clarify what constitutes “the media” and/or consider quite how “the media” functions in our society. To take an easy example, the decision accepts, without any reflection, the media defendants’ argument that they are constantly engaged in a Woodward/Bernstein-type “speaking truth to power” struggle against nefarious “powerful forces”. But in a typical media defamation case, involving a typical plaintiff, like, say, Cusson himself, or Richard Jewell in the US, who exactly has the power and money on their side? The plaintiff or the defendant? And why are we creating a defence which is only (or at least presumably only, given the lack of analytic rigour offered by the court) available to a *class* of defendants? The most egregious doctrinal mistake that the Court of Appeal (and, I think, the House of Lords) made in crafting this defence is that they set up a false dichotomy: they posit that we can have *either* free expression *or* robust defamation protection for an individual’s protection - but that’s incorrect: free expression doesn’t include the right to tell *lies*, which is what we’re talking about here. As the Supreme Court of Canada has characterized it, one of the principal aims of the right of free expression is to further the “quest for truth” - quite how that is realized by creating a safe harbour for media conglomerates to tell lies is a little unclear, at least to my mind. Finally, for all the kicking and screaming the media has done about the need for a Reynolds/Jameel-type defence, and all the hollering about how our “onerous” defamation laws are keeping stories under wraps that otherwise would be told, the most comprehensive empirical work done on the impact of Reynolds in the UK indicates that the actual effect is negligible: a BBC solicitor estimated the availability of the new defence enabled about one additional story per week to be aired (see “Defamation Law and Free Speech: Reynolds v Times Newspapers and the English Media”, Vanderbil Journal of Transnational Law, vol. 37 no. 5 at 1255ff). Which, as I read it, means that what we’re really dealing with is trying to solve a problem that doesn’t exist in any meaningful sense. If “the media” want an easy answer to the “problem” of defamation law, here it is: don’t lie about people.

I digress. I was originally hoping to submit the comment to the Osgoode Hall Law Journal, but they’re having an “issues” year, which means it likely won’t fit into any of their pre-set themes. I might try the UofT journal - if not, I’ll just put it up on the blog.

truewest
#12. April 16th, 2008, at 8:01 AM.

Bob,
I’m familiar with the study of Reynolds you cite. A couple of points that I took from paper:
- given that Reynolds is really only relevant to high-value investigative journalism — which accounts for less than 5% of the stories that run — I don’t think you can describe an extra story a week at one media outlet as a negligible impact.
- Reynolds had the greatest impact on quality papers; it was almost irrelevant to the boobs-and-scandal-mongers at The Sun.
- it led those quality papers, such as the Guardian, to use the 10 factors set out by Lord Nicholls as a guide, so as to bring themselves under the defence. Papers sought responses from the subject of stories in cases where they otherwise would not have done so. They tempered the tone of those stories to make them less inflammatory. And so on.
- even under the protection of Reynolds, most editors and lawyers didn’t think a British paper could run the equivalent of the Watergate investigation. (Jameel, which clarifies Reynolds, may have changed that).

I think your concern that this defence will allow papers to print “lies” is misplaced, if by printing lies you mean running stories that contain information that the paper knows is not true. All Reynolds does is recognize that the communication that passes between the media and the public has the quality of mutual interest/duty that is required to establish the defence of qualified privilege. And like any plea of qualified privilege, the defence can be defeated by evidence of actual malice, which at law includes publishing material you know to be false.
Nor do I think there’s anything particularly odd about a defence that applied to a class of defendants. Qualified privilege is, after all, largely based on recognizing that certain relationships give rise to reciprocal duties and interests that should encouraged because they are in the public interest. In any case, the media is hardly a closed category. As I’ve said above, if bloggers act like responsible journalists, there’s no reason why they should be able to that they should not be able to plead Reynolds when, in spite of their best efforts, they get something wrong.
Of course, given the endless and reckless speculation (and the sorry-ass attempts at investigation) that has surrounded Warman, that’s a mighty big “if”.

Good luck with the paper.

Bob Tarantino
#13. April 16th, 2008, at 11:07 PM.

truewest - Thanks for the thoughtful counter-argument, I appreciate it - this discussion is very helpful for clarifying my arguments, so I hope you’ll indulge me further.

Part of my concern with the new defence is that, as the court characterized it, it is *not* a traditional qualified privilege defence - it is something different (a “half-way house” as the court described it in para. 139). The court posits that they are not requiring plaintiff’s to prove malice - that the PIRJ defence is some sort of lesser standard; the problem is that this is undercut by the court’s own words describing how the defence is to be treated: it is to be applied in a “media-friendly manner” (para. 97, quoting the HL), and “lingering doubts should be resolved in favour of publication” (para. 90, quoting the HL). In other words, on my reading, the slide from “something less than malice” towards a requirement to prove malice (a standard which the court concedes is too high to effectively protect reputation (see para. 135)) is virtually a fait accompli.

Another concern with the PIRJ defence is that, since it is something other than a qualified privilege defence, I think there *is* a “category” requirement to avail yourself of it. As you note, other examples of qualified privilege turn on the requirement of interest/duty - but PIRJ seems to require that the defendant (a) be part of “the media” (again, the court’s terminology), and (b) meet the indicia. Unfortunately, because the reasoning is so vague on this point, we don’t really know whether that is a correct application of the new defence.

Finally, one of the most worrisome aspects is that this will have the effect of increasing the litigation burden on individual plaintiffs - as Peter Downard noted when contemplating the introduction of a PIRJ defence into Canadian law, it “will inevitably increase the forensic complexity and financial expense of litigation” - an expense which is least able to be borne by an individual plaintiff, but perhaps more easily borne by a media outlet with defamation insurance coverage.