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The Courts Your Rights Online

A New Libel Defense In Canada; For Blogs Too 146

Posted by kdawson
from the matters-of-public-interest dept.
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.'"
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A New Libel Defense In Canada; For Blogs Too

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  • This doesn't help (Score:5, Interesting)

    by bmo (77928) on Wednesday December 23, 2009 @01:43AM (#30532868)

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

    --
    BMO

    • Re: (Score:2, Interesting)

      by MichaelSmith (789609)

      Just don't go to England. Extradition doesn't apply to civil law.

      • If you have assets in England, you could lose them, however. That probably doesn't apply to the vast majority of bloggers out there, but still...

      • Re: (Score:2, Insightful)

        by TapeCutter (624760) *
        "Just don't go to England. Extradition doesn't apply to civil law."

        Wouldn't it be simpler not to publish deliberate and harmfull porky-pies about people?

        Sensible libel laws are a good thing in my books. Arthur C Clarke was accused of being a peodophile by a UK tabloid. He asked the tabloid to withdraw the story and apologise but they told him to take a flying leap. A lot of people belived the story (some still do), so he dragged the tabloid into court kicking a screaming, it took 2yrs but he got justi
        • by Bartab (233395)

          Wouldn't it be simpler not to publish deliberate and harmfull porky-pies about people?

          I assume a "porky pie" is something like a "chicken pie", and I question how one publishes it. I find personally find them quite yummy, however. I've never had one made out of pork, but would be willing to try it.

          Sensible libel laws are a good thing in my books.

          Sure. Such things are not under discussion. UK libel laws are currently anything but sensible.

        • by digitig (1056110)

          "Just don't go to England. Extradition doesn't apply to civil law." Wouldn't it be simpler not to publish deliberate and harmfull porky-pies about people?

          Simpler, sure. Completely ineffective though. The big problem with UK libel law is the way it makes the UK a haven for those who want to gag perfectly true statements.

          • "Simpler, sure. Completely ineffective though"

            I think A. C. Clarke would disargee.

            "It makes the UK a haven for those who want to gag perfectly true statements"

            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
            • Re: (Score:3, Insightful)

              by digitig (1056110)

              "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 [timesonline.co.uk] does suggest that either i

              • "This being News for Nerds I assumed you would too. Sorry....[snip]...Actual cases are, of course, difficult to cite because they are by their nature disputed."

                I asked for evidence [slashdot.org], not insults. So please take the stick out of your arse.
                • by digitig (1056110)
                  And I gave you evidence, although the fact that you think that one case of the system working correctly is evidence that it isn't open to abuse, and the fact that you don't seem to grasp the difference between evidence and proof, makes me wonder whether you'll be able to understand it.
            • Think about it for a bit, though. The most screwed up law ever put on the books can probably be shown to have done SOME GOOD, SOMEWHERE, at least once.

              The best law ever written can be horribly mangled by a dipstick of a prosecutor, or any lawyer, and ultimately subverted to persecute a target group of people.

              Arthur C. Clarke may have been served well by UK libel law - but every freaking MONTH we read about some jerkoff putting an honest person through the wringer with it. It's crazy. For one thing, no pr

              • Re:This doesn't help (Score:4, Informative)

                by Beardo the Bearded (321478) on Wednesday December 23, 2009 @12:58PM (#30536382)

                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.

                • Yes, this is how it works in Australia, I assumed the same was true for the UK since these things are based on common law. However this article [dailymail.co.uk] posted by "canadian right" below seems to indicate the truth of a statement is not a bullet proof defense in the UK (either that or the Judge's brother-in-law is a Chiropractor).
              • You can certainly call a prostitute a whore in Australia and unless you can prove otherwise I belive the same is true in the UK.
            • Re: (Score:3, Informative)

              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' [dailymail.co.uk]

        • by Znork (31774)

          it took 2yrs but he got justice in the end.

          See, that's the thing, if it takes someone like Clarke two years in court to get whatever 'justice' he can, it's hardly a system that in any way protects anyone against libel.

          Better to just get rid of the whole concept, including the veneer of legitimacy it gives the publishers of various lies (it must be true or they'd get sued!). Let them publish what they feel like and enjoy a reputation equivalent to a frothing madman in the street. Add some nice moderation sys

        • Do a little bit of research before you go spouting your opinions online. Simon Singh, a British science write, is on trial for calling chiropractic bogus. What was his basis for saying this? Well, he was responding to a series of patently, provably false statements by the British Chiropractic Association. They said that their bogus treatments would cure some diseases, which they provably could not, and then sued Singh for calling them out on it. Since libel law in England places the burden of proof on the d
          • Re: (Score:2, Informative)

            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 ra

            • by anyGould (1295481)

              "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.

              As I understand it, the difference between UK and Canada (can't really speak for US, don't live there) is that libel laws in the UK allow the accuser to be considered the defendant (for the purposes of "innocent until proven guilty").

              An example: in Canada, if I can you a donkey-fornicator, you can sue me for libel. Then the burden is on you to prove that (a) you're not a donkey fornicator and (b) that I knew you weren't a donkey-fornicator.

              As I understand UK law (admittedly, mostly from news reports), when

    • Re:This doesn't help (Score:5, Informative)

      by phantomfive (622387) on Wednesday December 23, 2009 @04:12AM (#30533466) Journal
      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 [wsj.com].

      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.

      • With our economy the way it is, I'd not be surprised if "libel tourism" was actively supported, just taxed more.
      • >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.

        Can't we just change the law so that it no longer reverses the burden of proof (so you nolonger have to prove your statements are *not* untrue) and as such upholds freedom of speech? FFS.

        • Can't we just change the law so that it no longer reverses the burden of proof (so you nolonger have to prove your statements are *not* untrue)

          Not untrue? There's a word for that, the word is "true". Presumably under such a system the plaintiff would have to prove his innocence. Can you prove you aren't a paedophile? I guess not, so if you were accused of being one on the front page of the Sun that'd be all well and good, right?

          I don't have a problem with the principle of "if in doubt, leave it out".

        • by moeinvt (851793)

          "Can't we just change the law so that it no longer reverses the burden of proof (so you nolonger have to prove your statements are *not* untrue) and as such upholds freedom of speech? FFS."

          Freedom of Speech is a larger issue than libel defense. Truth vs. lie might be an adequate protection against the specific charge of "libel", but under asinine laws like "The Canadian Human Rights Act"

          http://en.wikipedia.org/wiki/Canadian_Human_Rights_Act [wikipedia.org]

          The concept of "truth" is completely irrelevant. If you hurt someo

      • by MobyDisk (75490)

        Strange that it doesn't occur to them to change their libel law.

        • Yeah, they like it that way. Traditionally the brits tend to prefer protecting someone's reputation over being able to speak the truth. To Americans that seems really bizarre, but if they like it, I guess they can keep it that way.
    • by Gordonjcp (186804)

      In the UK there is a cast-iron unbeatable defence against libel, that cannot under any circumstances fail to get you acquitted - what you say must be *true*. If it's true, it cannot be libel.

      • Re: (Score:3, Informative)

        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.
      • Actually Robert Maxwell won a few lawsuits - mainly against Private Eye - where what was printed was true. The problem was the newspaper couldn't prove it at the time, it only came out when "Cap'n Bob" accidentally fell over a six-foot high rail.

        Not that I'm suggesting a reversal of the burden of proof. An ordinary person's career and life could be ruined by some malicious arsehole or big mouthed idiot spreading false allegations.

  • by qvatch (576224) on Wednesday December 23, 2009 @01:47AM (#30532886)
    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.
    • by shutdown -p now (807394) on Wednesday December 23, 2009 @02:24AM (#30533066) Journal

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

      Oh, Canada. Nevermind.

      • Re: (Score:2, Funny)

        by gmhowell (26755)

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

        Oh, Canada. Nevermind.

        So.... Maple leafs?

    • Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”);

      What does that mean, exactly? Could someone give an example?

      • It means they can't make a statement just for the sake of inflaming public opinion. Is it "interesting" or "factual"?

        For example, the public eats up any celebrity gossip, no matter how trivial. This means that the balance skew towards making the statement rather than the facts behind it. "Did Steven Harper visit a strip club in Copenhagen? Details at 11!"

        That statement is more interesting than it is factual.

  • Geist's coverage (Score:5, Informative)

    by roju (193642) on Wednesday December 23, 2009 @01:49AM (#30532896)

    Michael Geist also covers this [michaelgeist.ca], 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? (Score:3, Interesting)

    by nacturation (646836) * <nacturation@[ ]il.com ['gma' in gap]> on Wednesday December 23, 2009 @01:52AM (#30532910) Journal

    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: (Score:3, Informative)

      by Famanoran (568910)
      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.
    • Most newspapers are just as archived as anything published online, maybe not as accessible but archived.
    • Re: (Score:3, Insightful)

      by Bartab (233395)

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

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

        Thank you for the clarification, Captain Obvious.

    • by moeinvt (851793)

      "I'd rather have the good old days where something potentially defamatory published in a newspaper went away soon enough . . ."

      In the good old days (for me 70s and 80s) you had to dig, but you could still find most print material you were looking for. I think that society is much better off generally when we have instant access to dated information. One thing that's really cool and useful is that more and more VIDEO evidence is being kept around. One of my hobbies is political activism, and thanks to You

  • So truth as a defense doesn't count?
    • by pclminion (145572) on Wednesday December 23, 2009 @02:11AM (#30533000)

      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.

      • by roju (193642)

        That sounds like a horrible abuse of a defamation suit. Sorry to hear about it. Where did this happen?

      • by Idiomatick (976696) on Wednesday December 23, 2009 @02:38AM (#30533120)
        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: (Score:3, Insightful)

          by pclminion (145572)

          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

          • In the USA truth is an absolute defense. However, you do have to present it. The obvious incompetence of your attorney is not a defect in the law.

          • Ahh yes, this makes sense. If the insurance company is also paying the legal fees, it is far cheaper for them to make it quick and settle low.
        • That's a benefit of being Canadian. Perhaps a lawyer from the US could chime in as to whether it's the same down there? Doesn't sound like it is. Another perk from up here - loser pays the court costs. ;) (within reason)

        • by moeinvt (851793) on Wednesday December 23, 2009 @09:39AM (#30534540)

          "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 [wikipedia.org]

          • by corbettw (214229)

            Which is why I, even with all else we have to put up with, I'm still in America and not Canada. At least here I can say the President (for example) is a nigger*, and while I would certainly offend people (and possibly lose friends), I wouldn't face jail time.

            *I don't actually think this, obviously. I disagree with the man's policies, but that's a long way from hating him so much as to justify calling him that.

            • *I don't actually think this, obviously. I disagree with the man's policies, but that's a long way from hating him so much as to justify calling him that.

              Be careful here dear corbettw, and ask yourself: how much would you need to hate a man to be justified in calling him a nigger? In other words: what does a single man need to do in order for an other to be justified in insulting his group?

              • by corbettw (214229)

                Good question, and not one I have an answer to.

                But calling someone a mick, a limey, a dago, a kyke, a kraut, or any other ethnic/racial epithet isn't automatically an attack on that person's group. Besides, generally speaking, using such language says a lot more about the person using it than the person about whom they are speaking. All the more reason not to outlaw such behavior. I'd much rather know that someone is a racist asshole than have them hide their behavior due to wanting to avoid legal hassles.

    • by G_Biloba (519320)
      Truth as reasonable person sees it is not necessarily truth as far as the rule of law. A reporter can get valid information that would not be admissible in court.
    • by coppro (1143801)
      Truth is already a defense. This case establishes a new defense; it doesn't invalidate the exsisting ones:
      Justification
      The statement was true
      Privilege
      If you have some legal or moral obligation to disclose the defamatory material - for instance, you are providing a reference for someone looking for a job, or you are testifying in court.
      Fair comment
      You are allowed to criticize as long as it is done fairly and is based on fact.
  • I wonder... (Score:4, Funny)

    by Rivalz (1431453) on Wednesday December 23, 2009 @01:59AM (#30532950)
    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
    • by roju (193642)

      Haha I asked a former lawyer about doing that. They said it likely wouldn't work (in Canada, at least).

  • How about this? (Score:3, Interesting)

    by Darkness404 (1287218) on Wednesday December 23, 2009 @02:03AM (#30532970)
    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 [chicagobreakingnews.com] ) 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.
  • If they're subject to the same laws as established media outlets, does that mean that they basically get all of the benefits without any of the risks? Because there's no standard for blogs to fact check their work.
    • by roju (193642)

      The Grant decision [umontreal.ca] offers a two part test: (1) was the publication on a matter of public interest; and (2) was publication of the defamatory communication responsible? It gives a couple of "relevant factors that may aid in determining whether a defamatory communication on a matter of public interest was responsibly made" which should thought of as "illustrative guides". They are:

      -The Seriousness of the Allegation
      -The Public Importance of the Matter
      -The Urgency of the Matter
      -The Status and Reliability of the

    • Because there's no standard for blogs to fact check their work.

      What standards are there for "established media" to fact-check their work?

    • Journalistic standards? Heh. Have you been cryogenicaly frozen for fifty years and have you just woken up? Welcome to the modern world. We have McDonald's, SUVs for everyone, and Fox News.
      • The only standard most "journalists" care about is Thou Shalt Not Get Caught. Dan Rather forgot that one and look what happened to him.
  • by Sycraft-fu (314770) on Wednesday December 23, 2009 @02:16AM (#30533026)

    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.

    • by roju (193642)

      I'm pretty sure that in the US, under Sullivan, plaintiffs only need show "actual malice" if they're public figures. The Grant decision [umontreal.ca] even mentions that:

      [67]: In Sullivan, the United States Supreme Court applied the First Amendment’s free speech guarantee to hold that a “public official” cannot recover in defamation absent proof that the defendant was motivated by “actual malice”, meaning knowledge of falsity or reckless indifference to truth. In subsequent cases, the

    • Re: (Score:3, Insightful)

      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 also prevents the people in power from abusing the libel system -- if the newspaper had to be able to prove that everything they printed was true, politicians would be able to squash all dissent immediately. Right off the top of my head I can say that the Watergate scandal would likely have never broken if this were the case.
    • In the US this judgement may not have been necessary for the reasons you've outlined but this was not in the US; it was in Canada where this legal judgement was apparently required.

    • by http (589131)

      American libel laws, from what I understand of them, are sensible. Canada (where I am) has different libel laws; historically our love of free speech is not as strong as Americans.

      The Justices' ruling (and it's freaking long) doesn't say it's OK to libel someone in certain situations. It says the standard defenses against charges of libel aren't broad enough. It also suggests that demanding a standard of judicial proof from reporters isn't reasonable.

      People who enter public life cannot reasonably expe

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

    • Re: (Score:2, Insightful)

      by exasperation (1378979)

      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...

    • by Mashiki (184564)

      Satire is protected, that's why you see things like RCM [www.cbc.ca] and This hour has 22min [www.cbc.ca]. Something most people forget in Canada is our libel/slander/defamation laws are broken into three groups. Those that cause actual harm/character assassination, those that cause danger to public order and everything else. This more or less falls into "everything else" of course it'll probably end up back at the Supreme Court with a new category coming out of it unless parliament comes around and writes a law about it. The ch

  • by presidenteloco (659168) on Wednesday December 23, 2009 @02:28AM (#30533086)

    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

    • No. (Score:4, Informative)

      by coppro (1143801) on Wednesday December 23, 2009 @02:52AM (#30533190)
      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.
    • Why is this scary? If we put the burden of proof on journalists, it puts politicians in a place where they can very easily silence dissent -- the burden of proof in libel NEEDS to be on the plaintiff or it will be abused too often. When it comes to free speech issues, we always need to err on the side of freedom rather than civility.
      • This new ruling does not mention who has to prove
        that the defamatory statement is true, or prove that it is false.

        The ruling says: Even if the statement is proven false
        (i.e. not corresponding with reality i.e. made up),
        the journalist or blogger can just shrug it off by saying,
        in effect:"meh, I thought it was true at the time."

        That is encouraging irresponsible, and sometimes deliberately
        irresponsible journalism.

        We are talking about the (proven unjustified but nonetheless effective)
        ruination of reputation her

  • Now for the benefit of Joe Six Pack, someone should create a flowchart outlining all possible scenarios to the point of acquittal or guilt in cases like this. How about that?

  • How convenient (Score:3, Insightful)

    by gmhowell (26755) <gmhowell@gmail.com> on Wednesday December 23, 2009 @02:47AM (#30533168) Homepage Journal

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

  • by telso (924323) on Wednesday December 23, 2009 @04:51AM (#30533620)
    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

    • So, let me get this straight.
      A conservative-leaning judge would probably think it was,
      on balance,
      in the public interest to remove a left-leaning political
      leader from office.

      So if some conservative journalist "slips up" and
      slags the leftie using untrue statements ("for the
      sake of the country")

      then this is now ok.

      Wonderful.

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