On Libel
Simon Singh and the mathematicians are now living with the consequences of the human rights movement of the late 20th century. Margaret Thatcher’s repeated election victories convinced British liberals to try to win in the courts what they could not win at the ballot box. The trouble with the strategy has always been that British judges, like judges across the EU, do not believe in freedom of speech. They are illiberal liberals who will defend all rights except the most fundamental right of a citizen of a free country to make his or her case without fear of the consequences.“Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it,” said John Stuart Mill. But the average British judge does not believe that free debate in the marketplace of the mind will expose “wrong opinions and practices”. He believes they must be suppressed because he retains the fear of the old European aristocracy that the masses cannot see through dangerous ideas and bad arguments. nick cohen, the observer
As we watch the assorted SLAPP suits of the Jackal, Vigna and Lucy more or less grind to a halt in the face of document discovery and the possibility of cross examination, it might be time for Canadians to consider the idea of libel reform.
The idea of allowing suits for defamation is a good one but also one which needs to be constrained by the larger concept of freedom of speech (or, pace, Jadewarr, freedom of expression.) Vigorous debate about issues of public policy requires the ability of the debaters to be shielded from losing their houses in the event they are unable to prove a particular fact. And people who enter the public arena might well be forewarned that within the hurley burly of that arena they can expect more than a few shots some of which may be unfair or unfounded.
Similarily, it seems absurd for corporations to have the right to sue in defamation at all but, if we really want them to be able to then we should set the bar very high and make it very expensive if they use defamation law merely to silence critics or dissident shareholders.
There are a number of ways to approach defamation reform. One would be to make most defamation cases economically unattractive. Set maximum damages at a $1000.00 and require that any public figure prove actual harm to exceed this figure. Require proof of malice or a reckless disregard for the truth in order to collect better than 1K. And, require that in order to collect costs beyond the filing fees the plaintiff would have to be awarded greater than nominal damages.
Another would be to allow unlimited damages but to require the plaintiff to pay into Court 50% of the damages claimed which would be forfeit to the defendant in the event that a) the plaintiff could not make out his case, b) the plaintiff abandoned his action, c) the plaintiff did not make prompt and full discovery.
Another would be to, as is the case in British Columbia but not (in practice) in Ontario, exclude actions in defamation from the Small Claims/Simplified Procedure regime. this would have the effect of exposing both parties to the full disclosure required by the Rules of Discovery.
But those are all essentially procedural ideas: the Supreme Court of Canada seems to be expanding the scope of protected speech as it weighs the balance between the private rights of the plaintiff to his good reputation and the public rights of the defendant to “free expression”.
With luck, by the time Lucy, the Jackal and Vigna stagger into Court, the Supreme Court will have Canadians’ fundamental right to free expression – even where facts cannot be absolutely proven – will trump the right of an individual to sue for a slight and win. To go back to Cohen, Canadian judges, with a fixed Charter, are seemingly less aristocratic in outlook…There seems some danger of democracy creeping ever so silently through the back door.
July 20th, 2009 at 5:44 am
Umm…Jay, are you merely forgetting that Ezra gets up to these tricks, or does that spoil your little fable?
July 20th, 2009 at 8:17 am
Not forgetting at all Dawg. EZ would be wise to drop his own litigation which I have told him.
July 20th, 2009 at 8:24 am
Dawg, are you referring to the Merle Terlesky suit, or something else? Without question Ezra is being a jerk in that instance, and should drop the action. If you are thinking of some other suit I must’ve missed it – could you provide a pointer?
July 20th, 2009 at 9:09 am
Jay: you say “unable to prove a particular fact.” It’s not much of a fact then is it (sort of like global cooling)?
John
July 20th, 2009 at 10:40 am
dcardno:
That was indeed the case I was referring to.
July 20th, 2009 at 3:54 pm
Another would be to allow unlimited damages but to require the plaintiff to pay into Court 50% of the damages claimed which would be forfeit to the defendant in the event that a) the plaintiff could not make out his case, b) the plaintiff abandoned his action, c) the plaintiff did not make prompt and full discovery.
Brilliant idea, however if a Lawyer is sueing someone PERSONALLY it should be the total amount asked for in damages via pain and suffering and alleged libel. Said funds could be held in trust if the plaintiff doesn’t prove their case and it turns out to be malicious prosecution i.e. drops the lawsuit mid-case said funds go to the defendant. Far to many lawyers are using their legal status as a practicing LAWYER as a weapon, it’s rather cheap for a practicing lawyer to file SLAPP suits and it appears our law societies turn a blind eye to their members using lawfare as a political tool to silence their opponents or so it appears?
July 21st, 2009 at 6:49 am
The Catman and CBC beat the wrap from the old rich racist in Ottawa. Wow! The CBC and Kinsella’s victory is a defeat for taxpayers that foot the bill for the whole ordeal. Was Kinsella’s segment on CBC worth it? Really worth it? Access to Information to CBC on total resources and costs for the Crown Corporation in the legal defense, that would be an interesting return.
July 22nd, 2009 at 5:44 pm
Indeed certain public people should grow a spine. In fact the more public you are the less able you should be able to sue for libel – you need to take it as par for the course. Stalking someone who wants to lead a private life and saying untrue things about them – it is those people who should get a fairer focus from the law.
So happy to see Lucy have to face discovery and his reputation put on the line – there are thousands of on line examples of his Maximum Disruption.
Of course outside of the US, particulary Canada, free speech is non-existant as a concept – despite the fact we got that 800 freaking years ago from Prince John! The Stuarts are back in force under the leadership of Lynch and Harper.
July 23rd, 2009 at 5:25 am
Yes Vlad – more like millions ok Hundreds of Thousands!
An interesting commentary on the Governor Palin “Ethics” probe which pretty much says the same thing.
Lawfare and SLAPP suits can in fact disrupt public figures without any consequences to the originator.
July 23rd, 2009 at 5:27 am
Roerta – from what I read – the defeat was become there was some true to the accusation/statement.
I think the Libel bar just got raised a tad higher.