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A New Libel Defense In Canada; For Blogs Too

kdawson posted more than 4 years ago | from the matters-of-public-interest dept.

The Courts 146

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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This doesn't help (4, Interesting)

bmo (77928) | more than 4 years ago | (#30532868)

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

--
BMO

Re:This doesn't help (1, Interesting)

MichaelSmith (789609) | more than 4 years ago | (#30532894)

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

Re:This doesn't help (1)

MightyMartian (840721) | more than 4 years ago | (#30532996)

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:This doesn't help (0)

Anonymous Coward | more than 4 years ago | (#30533456)

How about if you have accounts in multi-national bank that has presence in England? It could also be investment firm with a satellite office in England.

Re:This doesn't help (0)

Anonymous Coward | more than 4 years ago | (#30533724)

That's unlikely to matter. Even if the law in England obliged the bank to hand over money (it doesn't), the law in the US would probably require the bank to honour the deposit, so ultimately it would the bank which lost out. If any country actually operated such a system, foreign banks would either avoid it or write off such cases as a cost of doing business.

If you're concerned about foreign jurisdiction, you should be more concerned about the plaintiff seeking injunctive relief, requiring that you retract and/or correct the story. If you failed to comply with that, it would become a criminal matter. Even if there was no risk of extradition from the US, you might have to avoid international travel for the rest of your life (the UK doesn't have a statute of limitation for criminal cases, and countries which do often don't count delays caused by the defendant evading the legal system).

Re:This doesn't help (1, Insightful)

TapeCutter (624760) | more than 4 years ago | (#30533510)

"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 justice in the end.

Re:This doesn't help (1)

Bartab (233395) | more than 4 years ago | (#30533544)

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.

Re:This doesn't help (2, Informative)

TechnoFrood (1292478) | more than 4 years ago | (#30533754)

Unless I'm missing some sarcasm,

Porky Pie = Lie

http://en.wikipedia.org/wiki/Pork_pie#Names_and_references [wikipedia.org]

Obligatory (2, Funny)

Anonymous Coward | more than 4 years ago | (#30533842)

The Porky Pie is a lie!

Re:This doesn't help (0)

Anonymous Coward | more than 4 years ago | (#30534706)

I assume a "porky pie" is something like a "chicken pie"

No, that would be a pork pie.

I assume you're a dumbass, but just to be sure how about I fucking google it for you? [lmgtfy.com]

Re:This doesn't help (1)

digitig (1056110) | more than 4 years ago | (#30534022)

"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.

Re:This doesn't help (1)

TapeCutter (624760) | more than 4 years ago | (#30534550)

"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 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.

Re:This doesn't help (2, Insightful)

digitig (1056110) | more than 4 years ago | (#30534764)

"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 it's easier to win a case here than elsewhere or that damages will be higher. Of course, we might be an outlier because we're leading the way to a better future, but for those of us who believe in free exchange of ideas it does look rather more as if something is seriously wrong [libelreform.org] .

Re:This doesn't help (1)

Znork (31774) | more than 4 years ago | (#30534164)

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 system and watch Murdoch's empire get moderated -1 troll.

Some aspects may need disincentives tho, outright systematized stalking/terrorising campaigns on another level than random potshots is a different thing. But that should be within criminal law rather than civil law.

Re:This doesn't help (1)

TapeCutter (624760) | more than 4 years ago | (#30534604)

Fox news = outright lies.

The Australian = half truths and inuendo

You might not see the difference but I do.

Re:This doesn't help (0)

Anonymous Coward | more than 4 years ago | (#30535558)

Slashdot = half truths and innuendo

TapeCutter = outright lies

There, fixed it for you.

Re:This doesn't help (1)

thisnamestoolong (1584383) | more than 4 years ago | (#30534700)

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 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.

Re:This doesn't help (1)

countertrolling (1585477) | more than 4 years ago | (#30535826)

A lot of people belived the story...

Well, that's just it. The real problem is those who believe the story, not those who tell it. Attacking the messenger is not the solution. Go after the "I'll believe anything" audience.

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

phantomfive (622387) | more than 4 years ago | (#30533466)

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.

Re:This doesn't help (0)

Anonymous Coward | more than 4 years ago | (#30533928)

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.

Er... if the libel is online, it can be accessed in England, and thus the foreigner's reputation has been injured there. Every bit as much as if the libel were printed in an English paper publication, or run on English broadcast.

His Lordship is trying a sticky-plaster fix for the fundamental problem that the internet is international, and for reasons of pure practicality is best considered hands-off locally. If someone wants to sue for libel, they're just going to have to go to the country of the libeler and sue there, or let it go.

And pushing for international agreements is a fool's game. While the West has been sleeping, China has bought-out small nations across Africa and SouthEast Asia. That totalitarian regime has a serious voting block in the UN now. Anything but a hands-off policy for the internet just gives leverage for Beijing's gameplan.

Re:This doesn't help (1)

LordAndrewSama (1216602) | more than 4 years ago | (#30533970)

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

Re:This doesn't help (1)

Blue Stone (582566) | more than 4 years ago | (#30534128)

>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.

Re:This doesn't help (1)

Hognoxious (631665) | more than 4 years ago | (#30534320)

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". Innocent till proven guilty; the accuser is the one who needs to provide proof, whether it's in a criminal court or the court of public opinion.

Re:This doesn't help (1)

moeinvt (851793) | more than 4 years ago | (#30534336)

"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 someone's feelings (provided that they're not a heterosexual white person) you can still be dragged into civil court. It would be a complete joke if it weren't for the fact that there are real penalties. Canada doesn't have anything like the First Amendment and Second Amendment to the U.S. Constitution. In Canada, "Thoughtcrime" really is a crime if you happen to share your unpopular thoughts. That's why I love visiting Canada, but sure as hell would never move there.

Re:This doesn't help (0)

Anonymous Coward | more than 4 years ago | (#30535510)

Thats a misrepresentation.

Section two of the Canadian Charter of Rights and Freedoms protects 'Freedom of Expression'.

It is limited by "Hate Speech", "Threats of Violence".

It allows for "the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing".

So, American, I'll grant its not the same, but to say we're a bunch of peons living under a tyrant is not only incorrect, its callously wrong.

Re:This doesn't help (1)

MobyDisk (75490) | more than 4 years ago | (#30534868)

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

Re:This doesn't help (1)

Gordonjcp (186804) | more than 4 years ago | (#30534206)

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:This doesn't help (2, Informative)

thisnamestoolong (1584383) | more than 4 years ago | (#30534786)

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.

Re:This doesn't help (1)

Hognoxious (631665) | more than 4 years ago | (#30534826)

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.

Re:This doesn't help (0)

Anonymous Coward | more than 4 years ago | (#30535142)

That isn't actually true.....you can still be sued for libel if you 'maliciously' mention spent convictions. Look up the Rehabilitation of Offenders Act. I don't know of any

duece (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30532882)

Took a massive shit when I got home. Then a couple hours later, I had to take another. It clogged the fucking toilet. God damn low-flow water savers can't handle cowboy-neal size load.

CBC article has details... (4, Interesting)

qvatch (576224) | more than 4 years ago | (#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.

Re:CBC article has details... (3, Funny)

shutdown -p now (807394) | more than 4 years ago | (#30533066)

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

Oh, Canada. Nevermind.

Re:CBC article has details... (1, Funny)

gmhowell (26755) | more than 4 years ago | (#30533146)

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

Oh, Canada. Nevermind.

So.... Maple leafs?

Re:CBC article has details... (1)

Just Some Guy (3352) | more than 4 years ago | (#30535236)

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?

Geist's coverage (5, Informative)

roju (193642) | more than 4 years ago | (#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? (2, Interesting)

nacturation (646836) | more than 4 years ago | (#30532910)

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:More ephemeral? (2, Informative)

Famanoran (568910) | more than 4 years ago | (#30533006)

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.

Re:More ephemeral? (2)

longhairedgnome (610579) | more than 4 years ago | (#30533306)

Most newspapers are just as archived as anything published online, maybe not as accessible but archived.

Re:More ephemeral? (2, Insightful)

Bartab (233395) | more than 4 years ago | (#30533552)

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

Re:More ephemeral? (1)

moeinvt (851793) | more than 4 years ago | (#30534442)

"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 YouTube, we can go back and actually see and hear politicians making campaign promises that they've now broken, or TV news reporters(entertainers) providing commentary that we now know to be BS. It seems that most people get their information from television, and it's more powerful to have the actual video of past events and statements than to simply write about it. Government and media personalities defame themselves without any help. I like the fact that the people now have additional tools to prove how full of $#!t the government and MSM really are.

Truth as a defense? (1)

Fallen Kell (165468) | more than 4 years ago | (#30532916)

So truth as a defense doesn't count?

Re:Truth as a defense? (5, Interesting)

pclminion (145572) | more than 4 years ago | (#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.

Re:Truth as a defense? (1)

roju (193642) | more than 4 years ago | (#30533068)

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

Re:Truth as a defense? (1)

pclminion (145572) | more than 4 years ago | (#30533100)

Washington County, Oregon.

Re:Truth as a defense? (4, Insightful)

Idiomatick (976696) | more than 4 years ago | (#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:Truth as a defense? (2, Insightful)

pclminion (145572) | more than 4 years ago | (#30533140)

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 the plaintiff won her case, she can't appeal it and drag the insurance company back through the entire process again. For all I know, that was the strategy on purpose.

I am, however, a bit disillusioned about free speech now. As far as I can tell, there isn't any. It's a lie.

Re:Truth as a defense? (-1, Troll)

Bu11etmagnet (1071376) | more than 4 years ago | (#30533282)

I am, however, a bit disillusioned about free speech now. As far as I can tell, there isn't any. It's a lie.

Wrong. Your wife wasn't shot, fired from her work, sent to prison, put into house arrest, forced to exile. She just had to supprort the consequences of her actions. You ought to be familiar with that concept.

Re:Truth as a defense? (5, Insightful)

pclminion (145572) | more than 4 years ago | (#30533296)

The consequences of speaking the truth and criticizing someone else's unacceptable behavior should not be 10 months of agony and a payout to a person who shows a clear pattern of suing their clients exactly the way she sued my wife. You are an idiot.

Re:Truth as a defense? (1)

moeinvt (851793) | more than 4 years ago | (#30534516)

"Your wife wasn't shot, fired from her work, sent to prison, put into house arrest, forced to exile. She just had to supprort the consequences of her actions. You ought to be familiar with that concept."

Duh. The whole concept of Freedom of Speech is that there aren't supposed to BE "consequences" for speaking one's opinion, regardless of how unpopular it happens to be. The fact that she was punished for this, regardless of whether it was a fine or a prison sentence is irrelevant. Do you think free speech just means that the government can't sew your mouth shut and cut off your fingers? i.e. You're "free" to speak, but be prepared because there will be consequences if you hurt someone's feelings?

Re:Truth as a defense? (1)

Hognoxious (631665) | more than 4 years ago | (#30534660)

Duh. The whole concept of Freedom of Speech is that there aren't supposed to BE "consequences" for speaking one's opinion, regardless of how unpopular it happens to be.

Back in the real world, there will be consequences of saying something that 99% of people disagree with - even if it's only that you won't get many party invites.

The whole concept of freedom of speech was to prevent the government stifling dissent. It isn't intended to make everyone agree about everything.

Re:Truth as a defense? (1)

kuactet (1017816) | more than 4 years ago | (#30535380)

The legal system is part of the government. Losing this sort of lawsuit then is by definition the government stifling dissent. Or, to put it another way, without the government in place, the person bringing the lawsuit would be shit out of luck trying to punish someone for their speech.

Either way, you're wrong.

Re:Truth as a defense? (1)

John Hasler (414242) | more than 4 years ago | (#30534496)

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.

Re:Truth as a defense? (1)

thisnamestoolong (1584383) | more than 4 years ago | (#30534840)

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.

Re:Truth as a defense? (0)

Anonymous Coward | more than 4 years ago | (#30534874)

Because the plaintiff won her case, she can't appeal it and drag the insurance company back through the entire process again. For all I know, that was the strategy on purpose.

It also means that she acknowledges the complaints are true in a public document. At least you nailed her with that.

Re:Truth as a defense? (1)

BikeHelmet (1437881) | more than 4 years ago | (#30533160)

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)

Re:Truth as a defense? (3, Interesting)

moeinvt (851793) | more than 4 years ago | (#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]

Re:Truth as a defense? (1)

corbettw (214229) | more than 4 years ago | (#30535332)

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.

Re:Truth as a defense? (0)

Anonymous Coward | more than 4 years ago | (#30535540)

Your link doesn't mention anything about truth as a defense with respect to hate-speech complaints, nor does the Wikipedia article on CHRT controversies. Could you please be more precise, instead of vague mud-flinging?

Re:Truth as a defense? (0)

Anonymous Coward | more than 4 years ago | (#30534408)

This shouldn't be possible in the united states.

IANAL, but as far as I know speaking the truth is one of the sure defenses.

In fact, you don't have to prove anything. The burden of proof is on the prosecution. They have to prove 5 things.

The information was published.
The plaintiff was identified.
There were actual damages caused (monetary, emotional or to reputation)
The published information is false.
That the defendant is at fault.

In short, if what your saying is true, you are off the hook. If you didn't know that you were lying, off the hook, if the newspaper publishes your opinion without your knowledge or consent, not your fault. If the plaintiff can not prove he suffered any damages, your off the hook. If you did your best to conceal their identity, guess what? Off the hook.

If your wife honestly didn't lie, or didn't know she was lying, you shouldn't have paid a dime. A "board certified complaint" does not even sound like it meets the proper definition of published (unless it goes out to a whole lot of important people, I have no idea).

I suggest you look into any further legal options or get a lawyer who knows what they are doing next time.

Re:Truth as a defense? (1)

Hognoxious (631665) | more than 4 years ago | (#30534914)

The published information is false.

How do you prove the published information is false? For example, if someone said you were a murderer/fraudster/sheepshagger could you prove you aren't? You can probably prove that you've never been convicted for any of them, but that isn't the same thing.

Re:Truth as a defense? (1)

EndlessNameless (673105) | more than 4 years ago | (#30535682)

The OP wasn't entirely correct. Even proving the published information false doesn't qualify it as libel.

Rather, it must be demonstrated that the publisher either knew the information was false---or was grossly negligent in assessing the veracity of the statements.

Publishing unsubstantiated rumors can occasionally get you nailed for libel. Indicating that the rumors come from an anonymous source (i.e., acknowledging a potentially unreliable basis for the claims) is generally enough to avoid the negligence clause.

Writing "Celebrity X shot his wife" is libel if I have nothing to demonstrate a good reason for me to actually believe he did it. On the other hand, writing "Anonymous witness reports Celebrity X shot his wife" is not libel if someone calls me anonymously and tells me they saw him do it.

The anonymous source is guilty of slander if he's lying; but I am not guilty of libel if I believe the report is likely legitimate and newsworthy.

Re:Truth as a defense? (1)

G_Biloba (519320) | more than 4 years ago | (#30533016)

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.

Re:Truth as a defense? (1)

coppro (1143801) | more than 4 years ago | (#30533700)

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 how many times i break the law each day (0)

Rivalz (1431453) | more than 4 years ago | (#30532918)

We (USA) missed the chance to sue Canada. Seriously I'm a legal clusterfuck but at least i know the difference between Defamation and Libel. Sometimes I feel like I should be deported because I no longer conform to the you hurt my feelings now I'm going to sue you mentality. Can they yank my citizenship because I'm not totally patriotic to the USA legal system yet?

I wonder... (4, Funny)

Rivalz (1431453) | more than 4 years ago | (#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

Re:I wonder... (1)

roju (193642) | more than 4 years ago | (#30533126)

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

How about this? (2, Interesting)

Darkness404 (1287218) | more than 4 years ago | (#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.

Re:How about this? (1)

Hognoxious (631665) | more than 4 years ago | (#30534976)

How about doing the sane thing and limiting libel to only really -damaging- things that were intentionally untrue.

You open up the floodgates with a new defence of ignorance, stupidity and incompetence. The solution's worse than the problem.

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.

I wouldn't have a problem if people who aren't experts would just shut the fuck up.

What about journalistic standards though? (1)

BuddyJesus (835123) | more than 4 years ago | (#30532978)

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.

Re:What about journalistic standards though? (1)

roju (193642) | more than 4 years ago | (#30533036)

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 Source
-Whether the Plaintiff’s Side of the Story Was Sought and Accurately Reported
-Whether 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”)

It seems likely that a blogger that ignored all of those factors would likely be at more risk of losing a defamation case than one that went to efforts to maintain some sort of journalistic standards and satisfy most of those factors .

Re:What about journalistic standards though? (1)

shutdown -p now (807394) | more than 4 years ago | (#30533074)

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

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

Re:What about journalistic standards though? (1)

martin-boundary (547041) | more than 4 years ago | (#30533092)

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.

Re:What about journalistic standards though? (1)

techno-vampire (666512) | more than 4 years ago | (#30533442)

The only standard most "journalists" care about is Thou Shalt Not Get Caught. Dan Rather forgot that one and look what happened to him.

Re:What about journalistic standards though? (0)

Anonymous Coward | more than 4 years ago | (#30533538)

Not a good example. Rather was caught by a well-planned "ratfuck". Specifically, a GOP henchman provided a forged copy of a genuine document. Reliable sources (primarily, the commander's secretary) indicated that the content of the document was real, leading Rather to run with the story. At which point, it is revealed the document to be a forgery, leading some to believe that it discredits the entire story (rather than a specific piece of evidence).

Re:What about journalistic standards though? (1)

demonlapin (527802) | more than 4 years ago | (#30533566)

Oh, why am I responding to an AC...

That one document was the whole story. And it was transparently, obviously, blatantly forged. Nobody who lived through the 1970s could possibly think it was real.

a forged copy of a genuine document

Wow. Just... wow. Too bad they never found an original, eh?

Re:What about journalistic standards though? (1, Informative)

Anonymous Coward | more than 4 years ago | (#30533782)

> That one document was the whole story

The events described in the document (Bush going AWOL from TANG) were the story. The story was already well underway before the forged document "surfaced".

> Too bad they never found an original, eh?

Most of Bush's TANG records vanished shortly after he went into politics (contrary to federal law). The absence of various documents which (legally speaking) are supposed exist isn't in doubt, nor is absence of people who were in TANG at the time Bush was supposed to be that recall having actually seen him, or the fact that the commander's secretary claims to have typed up reports about his absence.

I don't see why you'd need something like this (4, Informative)

Sycraft-fu (314770) | more than 4 years ago | (#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.

Re:I don't see why you'd need something like this (1)

roju (193642) | more than 4 years ago | (#30533062)

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 “actual malice” rule was extended to apply to all “public figures”, not only people formally involved in government or politics: Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). Sullivan and its progeny have made it extremely difficult for anyone in the public eye to sue successfully for defamation.

So I'm not sure 3 is true in the general case.

Re:I don't see why you'd need something like this (0)

Anonymous Coward | more than 4 years ago | (#30535460)

The way I read that, it seems that public figures have to show 'actual malice' in addition to the other three things: Falseness of claims, reason to know that claims are false, and intent to harm character.

I think this was intended to make libel more difficult to pursue as a public figure, not easier. Oh, BTW: IANAL.

Re:I don't see why you'd need something like this (2, Insightful)

shutdown -p now (807394) | more than 4 years ago | (#30533078)

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.

Re:I don't see why you'd need something like this (1)

thisnamestoolong (1584383) | more than 4 years ago | (#30534936)

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.

Re:I don't see why you'd need something like this (1)

wizardforce (1005805) | more than 4 years ago | (#30533096)

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.

Re:I don't see why you'd need something like this (0)

Anonymous Coward | more than 4 years ago | (#30535250)

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.

Those are all really nice defenses, the only problem is that virtually no one can afford to fight for them in court. I know I sure can't... so they're all equally useless for the average person vs. major corporation, rich doctor, politician, etc.

What about satire? (1)

Antony-Kyre (807195) | more than 4 years ago | (#30533040)

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

Re:What about satire? (2, Insightful)

exasperation (1378979) | more than 4 years ago | (#30533312)

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...

Re:What about satire? (0)

Anonymous Coward | more than 4 years ago | (#30535602)

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...

Then again, describing how to build a bomb does not make the individual a terrorist any more than describing how to construct a replica of a civil war weapon. It should be as easy task as that for a court to discern satire from something that is not.

Re:What about satire? (1)

Mashiki (184564) | more than 4 years ago | (#30533856)

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 chances of that happening are close to nil. Law of force(via courts) work just as well unless something really screws up.

This allows for character assassination (2, Interesting)

presidenteloco (659168) | more than 4 years ago | (#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. (3, Informative)

coppro (1143801) | more than 4 years ago | (#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.

Re:This allows for character assassination (1)

thisnamestoolong (1584383) | more than 4 years ago | (#30534882)

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.

What a lengthy judgement! (1)

bogaboga (793279) | more than 4 years ago | (#30533158)

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 (2, Insightful)

gmhowell (26755) | more than 4 years ago | (#30533168)

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...

Glad they decided bloggers have free speech rights (0)

Yosemite_Mark (595102) | more than 4 years ago | (#30533176)

... and not just "traditional journalists."

Hopefully someday they'll get around to granting everyone (even ordinary citizens) free speech protection.

As a 49 year old feminist grandmother (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30533188)

I reject Canada which makes this story null and void as well as invalid since "canada" shouldn't exist in the first place in any way shape or form other than North North America.

Traditional print media? (0)

symbolset (646467) | more than 4 years ago | (#30533230)

I'm thinking that traditional print media looks a lot more ephemeral than blogging to me. Something about the business model of selling advertising on four day stale news stamped on a dead tree in toxic ink, versus "profit is coming out. I'm a Twitter advertiser." and "Here's phone camera video from the scene of the incident." After all, it's difficult to print a 3D island of multimedia presentations of your products in a magazine ad.

They had their clue with CueCat [wikipedia.org] , and lost it with hubris. They could have it again with 2D barcodes scannable by cell phone cameras to link print stories to commentary, multimedia and updates. But they won't because they're stupid.

4chan (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30533436)

Go to 4chan /b/ and vent your frustrations there. As long as you don't post CP or spam, you can say anything you want, true or false, politically correct or not. Be ready to be called names, though.

Defamation law in Canada (4, Informative)

telso (924323) | more than 4 years ago | (#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 privilege (certain other documents), though this can be defeated if malice can be shown; 3) if the statements were opinion, they are fair comment; or 4) if the statements of fact are at issue, they must be substantially true (justification).

Whether the fourth point should be expanded to include statements that are probably true was what was at issue in this decision. And the court decided that, essentially, if the trial judge determines the matter was in the public interest, and the jury is convinced the publisher was diligent in trying to verify the allegation, a defence to defamation has been established.

IANAL, etc.

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