Damian:
I'd like to link here so my own readers can get some expert commentary on the case. I think I'm at my limits of legal competence in my comments on your earlier post. Thanks for doing this.
"he will bear the burden of showing he was defamed, and that his reputation was damaged as a result"
If I might, allow me to correct that statement. In a defamation action, a plaintiff need only prove the following:
(a) the statement referred to the plaintiff;
(b) the statement was published (i.e., was communicated to third parties); and
(c) the statement is defamatory - which is to say it would tend to discredit or lower the reputation of an individual in the eyes of the community; certain types of statements (e.g., of illegal activities or professional misconduct) are presumptively defamatory.
That's it. In a libel action (i.e., defamation by means of written word), the plaintiff does not need to demonstrate actual damage to his or her reputation. It is not a defence to a libel action that no damage to reputation was caused.
Broadly speaking, the only defences to a defamation action (where the plaintiff has proved their required elements), are: truth; consent (i.e., the plaintiff authorized the publication); privilege (only applicable in certain limited circumstances and certainly not in the cases we're thinking of); and "fair comment" - but fair comment, in order to be successful, must be based on an underlying truth.
I think what we will see here is a loss for the defendants, if only because the original assumption cannot be proved one way or the other.
The HRC has either deliberately, or through incompetence, thrown corporate responsibility out the window. There seems to be no record of which HRC employee used what name on which website, and when.
Can you imagine a police office investigating a child porn site and not keeping such records?
Although the " Cools" post forms much of the claim it is not the only words Warman claims are defamatory - e.g. Para. 38 (a) abused the CHRC in pursuit of his personal vendettas/ (c) filed complaints based on " thought crimes" as opposed to legitimate violations/(e) abused taxpayers money.
Paul Fromm once said the same things about Warman. He sued, won and was awarded $30,000 plus costs.
"The HRC has either deliberately, or through incompetence, thrown corporate responsibility out the window. There seems to be no record of which HRC employee used what name on which website, and when."
This strikes me as the crux of the matter. The HRC (and its freelancing collaborators) get to plant evidence under fake or misrepresented identities, with no record keeping, no oversight and no apparent policy. They get to lie about it, and (silly distractions about timestamping and dynamic IPs aside) get to hijack wireless connections to do it.
And if a commenter at SDA makes an inappropriately strong statement about it -- well, it's Kate's job to produce conclusive evidence about government activities, while the government functionaries have no obligations whatsoever.
I got that wrong too. As Bob says, the connection to damage is tied up in proving the words are defamatory. But context counts. I don't think there is much doubt that a modern court would say that to falsely accuse someone of racism is defamatory, but to falsely accuse someone of pretending to be a racist in order to entrap real racists?
It is interesting how the Commission's failure to establish rules about this kind of thing for its investigators may make it hard for Warman to allege he has been accused of professional misconduct.
OTOH, as impugning personal integrity seems to be the weapon of choice for many on both sides of this issue, and as one could argue there have been dozens of libels daily on many sites on both sides for months now, this should be interesting.
"I don't think there is much doubt that a modern court would say that to falsely accuse someone of racism is defamatory, but to falsely accuse someone of pretending to be a racist in order to entrap real racists?"
Particularly when it's not disputed that the plaintiff routinely *does* do that, instructs underlings to do it and keeps no formal records of it!
Seems to me that Warman is being accused of his actions.
That could only be defamatory if he thought his reputation would be damaged by his actions.
If he thought so, he wouldn't have done them.
Therefore, his reputation cannot have been damaged, even potentially, by his actions.
There are two views of his actions. Those who approve would not think his reputation was damaged. Indeed, they'd applaud.
Those who disapprove already think he's a weasel, and this just proves it. He can't get lower, so his reputation cannot be (further) damaged by his actions. Which were entirely voluntary.
And I didn't even go to law school.
"(c) the statement is defamatory - which is to say it would tend to discredit or lower the reputation of an individual in the eyes of the community"
Er... then isn't it libelous to accuse somebody of libel? I mean, that hurts THEIR public reputation, no?
I'm amazed that somebody hasn't filed a complaint against him, with the Law Society of Upper Canada [External Link]
Surely some of his activity is/was professional misconduct?
I certainly believe that the video Ezra Levant hosted of Warman counselling battery (i.e., throwing a pie at Ickes) should at least be NOTICED by the Law Society.
Posted at 2008-04-10 19:12:55 [PermaLink]There's a good chance that the Supreme Court of Canada may end up taking a long look at libel law and the matter of actual damage. In Decemeber 2007, Warman won a libel action against Paul Fromm, in part on the basis that Fromm's having called Warman a 'censor' was defamatory because, the judge held, what Warman did was "legal" and therefore could not have been "improper" and to impute that what he did was improper was defamatory. (Ok, I synthesized that down a lot!) But the argument is circular and of course ignores the question of whether the "legal" act was in fact a form of censorship. I hope that a Notice of Appeal was served and filed in that action.
Because the basis of that libel decision cannot be reconciled with Warman's position on these libel claims, especially when it is clear that he has but a passing acquaintance with the legal rights accorded to citizens under Section 11 of the Charter (which apply to all proceedings taken by the government against a citizen charged with an offence....oh wait!..This is the.CHRC and it is not a 'charge' and not an 'offence' so....).
Anyone want to bet that these libel actions, plus/minus Lemire's appeals from the CHRC won't end up at the SCC *together*?
James; or more to the point, Damian, doesn't someone have to file a complaint before the Law Societies' Discipline Committees will open a file?
I'd certainly hope that someone somewhere takes a serious look at this possibility.
I was interested to see that the Ontario Court of Appeals has been thinking on the subject of "public interest responsible journalism". [External Link]
I've not yet read the case but there seems to be some indication that safe harbour might be offered to statements which met certain criteria:
"The exact boundaries of the new defence must be further defined, and an appeal to the Supreme Court is likely, but the following indica from one of the leading British cases are useful guidelines as to the hallmarks of proving responsible journalism:
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."
The law firm which provided the commentary brilliantly does not provide a link to the case or even the cite; however, if this becomes settled law the defense will have more than a few arrows in its quiver.
Of course this does imply that Kate, Kathy, Ezra, Free Dominion, the National Post and Jonathan Kay are, well, journalists. (I don't, after all, want to be sued) A slur to be sure: but one which might be acknowledged if the alternative was a bogus claim of libel.
The Reynolds defense from the UK (which is what Jay is talking about), which allows otherwise libelous comments when there is considerable public interest in the matter, should be imported to Canada, but this is not going to be the case that does it. Reynolds has often been quoted in Canada in cases far more deserving than this one, which little result.
Please understand that there are cases far more worthy or your support out there currently before the courts. Google "openpolitics libel" and start reading.
That claim is here:
[External Link]
If the plaintiff is successful, so much for viable wikis in Canada, or even wikis which can be accessed from Canada. You don't have to be a Canadian citizen to sue for libel in Canadian courts. You need only have an interest here.
They go to trial this October.
If you want to support them financially, or any of the other Crookes defendants for his many cases, please visit Section 15 and leave a comment
I'm a Crookes defendant as well.
See [External Link]
And, frankly, the ridiculous Harper suit against the LPC is more of a threat to bloggers than Warman's, which contains no precedent possibilities that I've yet noticed. Harper's is dangerous because Harper is striving to prove that an online site publishing opinion which otherwise would be protected by a conditional privilege defense if the site was a pure journalist source, should not be protected.
In other words, the Toronto Star can quote and comment on risky Question Period material (there are powerful statute libel defenses for newspapers and broadcasters), but if a blogger or a political party does the same thing, it's libel.
As much as I want libel law in Canada updated to the 21st century, effectively arguing that because Warman has used a sock puppet before to investigate possible Section 13 violations does not entitle anyone to claim that any posting which remotely can be argued to be possibly his is his. Given that there are at least 70,000 possible alternate authors [External Link]to that post, makes the claim that he posted Cools -- which Warman clearly denies -- likely false, under the balance of probabilities.
To prove Warman did the post requires that all the other possible posters are less likely than Warman to have made the post. Those odds are quite poor for the defendants.
Warman's testimony has been that he has never posted anything under a sock puppet or otherwise which could violate Section 13. The Cools post may very well do so, and unless any material he admits to posting is as incendiary, then the defense that Warman has made his own bed in this affair won't fly.
I've reviewed the case Warman pursued against libraries and found it legal, but wrong. I'm no fan of the man for doing so. However, we must separate the man from the action. I cannot fathom why it would be good public policy to allow people to publicly accuse a person of writing an offensive post he didn't author.
I doubt that a judge will either.