Kinsella v. Levant

Here we go again. On a personal level, of course, I hope Levant successfully fends off any legal action from Kinsella. But does the case have any merit?

Kinsella met with Mohamed Elmasry's sock puppets a few months ago, and appeared to take them at their word. On his blog, he admits to giving them some advice about dealing with Maclean's.

I don't think Kinsella believed he was helping Mohamed Elmasry or the Canadian Islamic Congress, however. (Like many commentators, he probably - and erroneously - believed that the law students were the complainants against Maclean's.) Say what you will about Kinsella, but I do not believe he would voluntarily work for anyone he considered antisemitic.

If Kinsella and the CIC got any assistance from Kinsella, they got it indirectly. Here's what Levant wrote on his blog:

Farber's newest recruit to the CJC, Warren Kinsella, has provided political and media advice to the CIC's young bigots-in-training, the "sock puppets". Farber just verbally supports Elmasry. Kinsella -- on the CJC's legal affairs committee -- actually rolls up his sleeve and helps the anti-Semites out a bit.

The wording is open to interpretation, I think. Levant could have been saying Kinsella was deliberately helping anti-Semites, or that his work had the effect of helping anti-Semites. There is a difference.

A recent Supreme Court of Canada decision put forward this test (from the headnote) for cases of alleged defamation:

It is therefore appropriate to modify the “honest belief” element of the fair comment defence so that the test, as modified, consists of the following elements: (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 recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice.

Unless Kinsella can show malice, I think Levant can successfully raise this defence. (Once again, I'd appreciate hearing from anyone who specializes in this area of law.) That said, a clarification - not a retraction or apology, but a simple clarification - might have defused this mess before it started. Maybe.

Damian P.

Posted by damian at July 7, 2008 04:56 PM