Friday, June 27, 2008

Harpie's libel suit against the Liberals could be in trouble

The Supreme Court of Canada doesn't like the libel chill in the air:
Freedom of expression requires that the media be capable of publishing provocative stories and comments without living in constant fear of lawsuits for libel and defamation, the Supreme Court of Canada said Friday.

In an 8-1 ruling that set out to modernize libel law and the defence of fair comment, the court found that a controversial B.C. broadcaster – Rafe Mair – did not libel a Christian-values advocate, Kari Simpson.
Oh, a timely "modernization," I see. Some of the legalities:
“The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression,” Mr. Justice Ian Binnie said for the majority Friday.

“There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get 'spiked,' it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence.

“When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation.”

There is nothing wrong with laws that "chill" speech that is false and defamatory, Judge Binnie said. “But chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship,” said. “Public controversy can be a rough trade, and the law needs to accommodate its requirements.
Hear that, Harpie? Public controversy is "rough trade." Someone needs to get a thicker skin is what I'm thinking...:)

Also from the report, the legal test spelled out:

In its ruling, the Supreme Court set out a new series of legal tests to be used in determining whether a defendant the “honest belief” aspect of the defence of fair comment defence has been met in a case. It said that:

– The comment must be on a matter of public interest;

– It must be based on fact;

– Although it can include inferences of fact, the comment must be recognizable as comment;

– The comment must satisfy the question: Could any person honestly express that opinion on the proved facts?

Now I'm not a defamation lawyer or anything, but that last question doesn't seem to bode well for the PM's Cadman suit. Given the existence of the audio tape on which Harper's own voice is heard - and that has not been disputed nor have the experts retained by the Conservatives explained how that substance is affected by their claims that the tape is undermined - sure sounds like comments made in Ottawa have been in the public interest and opinions capable of being expressed based on the facts at hand. We shall see how this plays out.

Are the Supremes trying to send someone a message? Heh...:)