This is a featured issue.
Libel laws in Canada are derived from English common law
?, and are of similar vintage to other antique laws on blasphemy
?, heresy
? and treason
?. In the Criminal Code of Canada
? the categories of
criminal libel are divided into blasphemous libel
?, sedition
? and
defamatory libel.
defamatory libel
The latter is by far the most commonly applied law. According to Tremeear's Criminal Code, 2001
?, page 298, it is defined as "matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published." The defence of truth
? and defense of justification
? apply but not absolutely - unlike other English-speaking jurisprudence
?. Libels can be true! Publishing false ones is a more serious offence, as is extortion by libel
? or selling a book containing defamatory libel
?. In Canada the laws have attracted several Charter section 2b challenge
?s on the grounds of vagueness and are often claimed to violate Charter section 7
?.
civil libel
Much more common is
civil libel suits for defamation
? in written form - when spoken the same comments are called slander
?. Its advocates claim that libel law reduces efforts to alter personal reputation
? and corporate reputation
? using false statements of facts and of opinion that are not justified by facts, and to compensate those who suffer provable damages from same. This is disputed by many advocates of deep reforms to these laws. Of particular concern is the reverse onus
? provisions
http://www.itbusiness.ca/it/client/en/Home/News.asp?id=297&bSearch=True
. Author Dave Webb
? notes that "it's much easier to win a libel judgment against a detractor in Canada than in most of the civilized world. (In Canada, libel is a reverse-onus crime — prosecutors don't have to prove guilt. The accused must prove innocence. The only other such crime in Canada is treason
?.)" He also notes that "the negative publicity of the lawsuit often outweighs the benefit."
[+] "cybersmears"
This is especially so in the
Internet age: Scott Erickson
? http://www.itbusiness.ca/it/client/en/EDGE/News.asp?id=4606&bSearch=True notes that "Companies have always had to deal with bad word-of-mouth, but on the Web, it's possible to tell something to millions at the press of a button. The potential is there for a lot of damage." He recommends however avoiding use of libel suits: A company being slagged online can set up its own links to its sites to tell its side of the story, and "It's important to be there with the critics and to put your case to people who may believe everything they read." Only when these courses fail does he recommend "companies go to their lawyers to file defamation cases". Few get to trial. William McDowell
?, a partner in the defamation and public law area at Toronto firm McCarthy Tétrault LLP
?, there are about 500 suits for defamation filed in Toronto every year, of which just 25 may move to trial. He suggests these threats have deterrent value for some parties, but that the irresponsible
?, the indigent
?, and "those who live and work in jurisdictions far from Canada," may not be dissuaded. If defendants have a reason to resist, such as preserving
freedom of political speech, the likelihood of negative publicity is magnified. The infamous McLibel
? case is often cited as a warning. against spending vast sums and ending up with bad publicity and an uncollectible judgment. They'd been warned: defendants had promised, if the case went against them, to take the case to the European Court of Human Rights
?.
Most experts advise ignoring so-called "cybersmear
?s", especially from
anonymous trolls on the Internet. McDowell suggests that "If there is an anonymous posting and there is no reason to think that information comes with an inside track, it is just graffiti. If you go to trial, you put your character at issue," he says. A
scorched-earth defense is the claim that the plaintiff
? has no reputation worth protecting, and it has become a standard defense against libel.
Stuart Biegel
?, a US law professor, argues that uncritical printers of rumour ruin careers and shatter lives. However,
US libel law is very specific about applying extremely rigorous tests and requiring judges to dismiss cases that do not satisfy them.
In Canada, the situation is very different. Some ancient forms of libel law required no or little such proof or tests and were simply tools to inhibit any criticism of persons with power, privelege or money. In modern constitutional law
? regimes, these standards are generally considered obsolete and repressive.
Andrew Alexander
? http://www.itbusiness.ca/it/client/en/EDGE/News.asp?id=4606&bSearch=True lists various problems identified by Brad Hanna
? — a partner at Toronto law firm McMillan Binch LLP
?, who admits the problems of tracing the alleged
defamer: "You can identify the computer from which a posting was made. But if the bulletin board service will not disclose the identify of the person who did the posting," or does not know it, then "you need a court order
? to get beyond the
IP address." Courts must be convinced of the public interest in granting such a violation of
privacy, and often, they aren't.
Hanna notes that even with that information, "you may only have a computer in an office. Then comes the question of who was at the machine at 3:53 p.m. on a certain day. You may be able to prove the defamation, but not find who uttered it."
All this costs. As Don Douglas
?, a partner in Winnipeg law firm Thompson Dorfman Sweatman LLP
?, notes, a defamation case can cost the plaintiff $50,000 to $100,000. On top of that, there is the risk that the plaintiff can come out of it looking preposterous: "Is the case worth the adverse publicity it may bring?"
"outdated and repressive"?
technologically obsolete
David Fewer
?, staff counsel with the Canadian Internet Policy and Public Interest Clinic
?, based in Ottawa, believes that libel law in Canada hasn’t kept pace with technological change, and reflect newspaper-style publishing
?, "where there is a delay between when content is written and when it is available for public consumption."
http://www.itbusiness.ca/it/client/en/home/News.asp?id=40467 quote/characterization from Neil Sutton, who also reports Fewer's view that "these publishers have the resources and wherewithal to prevent their publications from becoming outlets for defamation – not so in the online world, where information is often published instantaneously and without the benefit of mediation," another distinction US laws makes. He does not challenge the validity of libel law as such: “We don’t want the Internet to be the Wild West. There’s got to be a role for responsible intermediary behaviour here, but the answer isn’t blanket liability, the way defamatory law is currently structured.”
right of reply obsoletes it?
Electronic Frontier Foundation
? co-founder Mike Godwin
? has stated that the right of reply
? must replace all forms of
libel law in the long term.
See this position in detail below.
morally obsolete
The libel definition itself is also at issue. According to media lawyer Dan Burnett
?, "Canada's
libel laws are currently the most outdated and repressive in the English speaking world", essentially reflecting unevolved "English common law of libel" which is "of ancient origin, dating back to an era when the treason
? laws forced great literary figures to write under
pseudonyms or in allegory
? to avoid persecution
?."
He argues that this is still the case today.
See libel chill for more on this phenomena.
socially and politically obsolete: Martin vs. Harper
This issue became prominent in Canada when then-
Prime Minister of Canada Paul Martin threatened to sue the-Leader of the Opposition
? Stephen Harper over the latter's characterization of the
Liberal Party of Canada as a form of "organized crime
?". No suit followed, but the
Canadian federal election, 2006 did, in which Harper displaced Martin as PM. during that campaign, Harper continued to deliberately insult and insinuate that the Liberals were dishonest and abused power
? - including political ads and at least one public event involving a box of ostensibly public money. Harper publicly cautioned attendees "don't let any Liberals near that." Evidently the social atmosphere in Canada was such that despite Harper's clearly libellous allegations, it was not possible to pursue any such suit; This right however has not accrued in law to other critics of powerful persons or others exercising
freedom of political speech.
Table of contents
- defamatory libel
- civil libel
- "outdated and repressive"?
- issue: the reverse onus and blanket liability and other assumptions of libel law
- position: users of online forums should indemnify? against libel lawsuits
- position: reverse onus is unfair and prejudiced against defendants
- position: libel law generates perjury
- argument for: reverse onus is an irrestistible temptation to lie and exaggerate
- argument for: the best defence is a good offense, even if the public is the one offended
- position: all libel law is obsoleted by right of reply
- position: libel must be allowed at least in online political debate forums
- argument for: the job is hard enough without tracking down every troll
- argument for: moderators are inhibited by lawsuits, giving trolls leeway
- position: Canadian libel law is utterly unconstitutional
- argument for: the US had to change
- argument for: other Commonwealth countries had to change
- argument for: persons trying to conceal illegal acts deliberately file suits against their opponents in Canada
- argument for: persons trying to conceal illegal acts base their "businesses" in Canada, which victimizes Canadians
- argument for: no reference to realities of current technologies
- position: all persons in the world have a right to utterly ignore complaints based on Canadian libel law that would be dismissed or punished in US or Commonwealth countries, regardless
- position: all persons in the world have a right to utterly ignore complaints based on Canadian libel law that regard public interest or politics and do not describe business activities or personal actions undertaken for oneself
- position: libel law should apply to published materials on paper with a publisher who profits in a country; slander? should be the only applicable law for any utterance in electronic form, e.g. on the Internet
- argument for: slander law is intended to cover casual utterances that haven't been vetted or reviewed or formally published
- argument for: slander law requires higher and more appropriate standards of damages and fault
- current cases
issue: the reverse onus and blanket liability and other assumptions of libel law
The many controversial assumptions made in libel law in Canada, particularly those that no longer apply in the US, UK, AU or NZ, fail to protect many persons who act reasonably and responsibly, particularly in online forums. They also are open to various abuses when applied to political speech, critique of powerful persons, and so on.
[+] position: users of online forums should indemnify? against libel lawsuits
The right of reply
? especially right of anonymous reply
?, right of refactor
? especially right of anonymous refactor
?, and right to vanish
? in combination are a far better remedy. In forums where they can be implemented, they should be implemented, and all participants who expect these rights or exploit or demand others use them on their behalf should surrender any right to sue.
[+] position: reverse onus is unfair and prejudiced against defendants
Only libel and treason and some gun crime
?s have reverse onus
? provisions. These may be justified for grave threats to human life, but not for minor issues like interpersonal reputation. They are greviously unfair to any person sued in a jurisdiction chosen by a plaintiff where they do not have a lawyer already employed.
[+] position: libel law generates perjury
[+] argument for: reverse onus is an irrestistible temptation to lie and exaggerate
When a legally sophisticated plaintiff gets to choose the jurisdiction and timing of a lawsuit, especially one in which response is unlikely, the temptation to exaggerate, lie, deny knowledge of context, and mislead the court into a favourable injunction
? or judgement
? can be irresistible.
[+] argument for: the best defence is a good offense, even if the public is the one offended
Unethical people will often commit offenses against the public while pursuing remedies for themselves.
Given that responses are often rushed, inadequate and underfunded, libel laws are much more likely to generate perjury
? and other intent to mislead
?: false statements on the record that a plaintiff makes to try to panic defendants into submission, and which a defendant is unlikely to investigate deeply. By pretending to be offended when in reality they are exercising a distraction tactic which requires a short response, plaintiffs and their lawyers escape the ordinary scrutiny that their false statements on the record might have received in another context, such as a public denial. The intent and foreknowledge of plaintiffs are unlikely to be addressed in a civil response.
[+] position: all libel law is obsoleted by right of reply
Since user-to-user indemnifications can be enforced and effective for any practical online discussion medium, they should be universal. A participant in an
equal power relationship with other participants should have no right to recourse in the courts outside that process.
This is Godwin's position.
Badly formed statements including outright falsehoods can spread for many reasons and not all of them can be traced back to one person's intent
?.
[+] argument for: selective enforcement is inevitable, therefore so is technological escalation to escape it
The selective enforcement
? inherent in a net riddled with anonymizer
?s and identity theft
? is no longer acceptable and has grave potential to motivate creation of
signal infrastructure that's easily abused to assist in distributing other unlawful content
?.
Civil lawsuit
?s start
technological escalation and divert effort from better
organization protocols towards hiding and distracting techniques. They cannot be filed in every
jurisdiction where an online utterance is read, so they will never be effective. They are no longer in the
public interest: Since public interest now requires online participation by nearly everyone, every
libel suit is a SLAPP
? suit, since damages and fault are only amplified by the filing itself.
[+] position: libel must be allowed at least in online political debate forums
The public interest requires fully public indemnification against any such lawsuits in any forum, even those based on false factual statements. Such statements are inevitable in privacy-sensitive
? or secrecy-bound
? fields. The powerful will become more powerful simply because of their ability to sue, as society gets more complex and more disputes arise.
Online media offer better solutions than libel suits: provide instant correction,
mass peer review, access to a world of skilled moderator
?s and other benefits that are far more equitably distributed to all participants than the ability to sue.
[+] argument for: the job is hard enough without tracking down every troll
Efforts to track down or respond to some specific (perhaps short-lived) statement are better spent developing better editor skills and protocols to help good editors control bad ones.
[+] argument for: moderators are inhibited by lawsuits, giving trolls leeway
Moderators will be afraid to intervene if a failed attempt to moderate results in any moderator being named in a lawsuit as a facilitator or co-editor. If they can't intervene safely to moderate and de-escalate
? conflict, they'll do nothing, and as a result
trolls will have all the power. This may kill the forum or not, but it will certainly not result in a satisfactory result for good contributors who share the overall goals of the forum.
[+] position: Canadian libel law is utterly unconstitutional
Burnett states this position as follows:
"The law of libel long predates the internet and the Charter of Rights. The many ways it is offensive to free speech include its presumptions that a person's words are false and that the words cause damages without requiring proof, and it admits of no excuse where a writer took reasonable care.
In the USA, with a long history of constitutional law and a mature constitutional law regime, "the need to change the law to protect free speech has been recognized over the past 50 years, resulting in jurisprudence
? which altered the law. In cases involving speech about public interest issue
?s or
public figures, it now requires proof of falsehood
?, proof of damages
?, and proof of fault
?, meaning at least negligence
? and sometimes
malice." - Burnett.
Burnett says also that "the defense of
fair comment, which under English law requires proof of a number of complicated elements, was reduced in American jurisprudence to the simple concept that
there are no "false" opinions." -
see position below. "Therefore, if a statement is found to be one of opinion
?, the case is dismissed
? without inquiring further."
In some US jurisdictions including California
?, Strategic Lawsuit Against Public Participation
? is defined very broadly and intended to punish those who file them to inhibit public debate
?: after a SLAPP case is dismissed
?, civil defendant
?s receive triple damages
? on any damages won in a countersuit
?.
[+] argument for: other Commonwealth countries had to change
Burnett notes that in "Australia
?, New Zealand
? and England
?, the courts have explicitly recognized that the traditional law of libel
? infringes on
free speech too much, and have taken the approach of recognizing as a new defense, a special privilege for speech on political or public interest matters
? even where the report contains a falsehood
?, if the writer acted reasonably in all the circumstances. In England, they call this the
Reynolds defense. Canadian courts have paid some lip service to the Reynolds defense, but have not authoritatively declared it to be part of the law of Canada."
[+] argument for: persons trying to conceal illegal acts deliberately file suits against their opponents in Canada
Burnett claims that libel "plaintiffs
?s can and do to bring their cases in Canada. It's called
forum shopping. If a plaintiff can find a publication in Canada, which is pretty easy in the
internet age, and convince the Canadian court to accept the case, they get the advantage of having their case heard under legal rules that favour plaintiffs
?."
[+] argument for: persons trying to conceal illegal acts base their "businesses" in Canada, which victimizes Canadians
Two individuals who inhibited any Canadian publication of doubts about their practices and ethics were Conrad Black
? and Garth Drabinsky
?, both of which were eventually required to face
US SEC charges for exactly the activities that journalist
?s had attempted to expose many years in advance. Canadians who invested in their enterprises were denied information from journalists in a position to investigate their actions on home turf (Toronto), which US journalists were in a poor position to do.
[+] counter-argument: it benefits Canada to be a safe haven for international crime
Many Canadians benefit directly from white collar crime
? activities such as telemarketing fraud
? and securities fraud
? bringing money especially from US victims and investors that is spent here in Canada. Also, international organized crime
? figures who set up their bases in Canada often consume lavishly and feed local retailers and service providers. Canada's attractive libel laws are an important factor in their choice to settle in Canada and to pursue their international business from a base in this country. To let these people be subject to criticism would be to inhibit such immigrants.
This may be a troll argument.
Burnett says "it's good business for Canadian defamation lawyer
?s, but doesn't reflect very well on our national commitment to free speech." But who cares as long as lawyers make money, it must be good.
This may be a troll argument.
[+] argument for: no reference to realities of current technologies
Burnett notes "new and fundamental questions" arising from
online deliberation: "How does the right of reply
? on wiki
? and reader-post
? sites affect the law? Are we going to hold site operators liable for automatic posts by others? Are going to recognize a defense for a person who operates a public forum for debate
??"
[+] position: all persons in the world have a right to utterly ignore complaints based on Canadian libel law that would be dismissed or punished in US or Commonwealth countries, regardless
[+] argument for: child pornography? and hate speech are higher priorities worldwide
Given that international law enforcement requires global goodwill and that Canadian law has more protections for child pornographers and hate speech (see Michael Geist's arguments below) than for persons accused of violating Canadian libel laws, asking any nation to devote any effort whatsoever to enforcing the libel laws diminishes the goodwill and cooperation required to deal with higher priority unlawful content
?. If complaints about these activities are going to be effectively enforced by a global partner on request by Canadian authorities, Canadians can't waste their goodwill on pettiness.
This is similar to arguments regarding community cooperation? and marijuana legalization?. If authorities want cooperation in stopping hard drug? traffic, they must cease to prosecute potheads.
[+] argument for: extreme inequity of power to respond violates many rights
Rich persons may sue
? for Internet
? or satellite TV
? or radio
? discourse in any jurisdiction in the world. Filing even simple
Canadian Charter of Rights and Freedoms defenses in any or all of these cases will quickly overwhelm any person or ordinary means' ability to respond, and wholly inhibit their use of resources for their family and civic life.
Accordingly, the only way to uphold the rights of such persons is to let them ignore any and all such cases until a court order
? is issued to require them to do something, at which point the full right of appeal
? should apply no matter what were the circumstances of the case.
[+] argument for: precedent?: heresy?, sodomy?, blasphemy?, treason?, witchcraft?, sedition?
All democracies have laws on the books, or recently had laws on the books, which are utterly ignored. Charges or lawsuits based on these laws are quickly dismissed without much (or any) need for an intended defendant to respond. These laws are of about the same vintage as the traditional law of libel
? and thus to treat the latter like the former is fair.
[+] argument for: UN Charter of Univeral Human Rights? protections
The UN protects all persons for various forms of harassment intended to inhibit their ability to state facts and opinion, as long as opinion is not stated as fact.
Filing nuisance lawsuit
?s is a form of harassment, as has been recognized in all US jurisdictions that define
SLAPP as a category.
Permitting these, especially to admit evidence
? that will effectively
require response to hearsay - as is the case in many cases involving
anonymous trolls,
pseudonyms or collective author
?ing - is a gross violation of human rights.
[+] position: all persons in the world have a right to utterly ignore complaints based on Canadian libel law that regard public interest or politics and do not describe business activities or personal actions undertaken for oneself
[+] argument for: US, AU, UK, NZ law all recognize political speech as requiring special protection
[+] argument for: there can be no objective definition of malice nor even negligence? in the public realm
Without such definitions applicable across cultures and ideologies, the modern definition of libel can't be satisfied on a global basis - thus cross-border application of this law is selective enforcement
? and inherently unfair.
"Globally, there is no substitute for multi-party representative democracy
?", says Les Campbell
?. This is correct. A
political party must assume ill will
? often in its debates with power, and its comments about those with power or seeking it will necessarily verge on the libellous or malicious.
Even a
political cartoon would be forbidden as "malicious" if it were about persons in private life.
Each
ideology defines this differently.
At the very least, persons criticizing public or political activities have an effective defense that these activities are at least potential assaults or attacks on their person, given that the state
? is a monopoly on violence
? and that others who engage in political action are attempting to gain control of it or some influence on it. Everyone has a right to object to this, and assume ill will
? of those who are seeking to gain such power. In other words, there is no test to distinguish malicious talk about one's opponents from simple self-defense
?, if the only intent is to keep them out of power.
[+] argument for: free uninhbited political speech is the most basic political right
The right to oppose political actions that affect oneself, and to be free of inhibitions against opposing them with the utterance of truth, is the most universal of all rights. Without it, there are no "rights".
Any political opinion is a valid one if it is not clearly falsifying specific facts - to state such an opinion requires no defense, ever, as a matter of freedom of conscience
?, freedom of association
?, freedom of expression
? and
freedom of religion. Defining a libellous opinion is equivalent to defining which conscience, association, expression, religion, or
ideology is acceptable, and carries grave risks of violating
separation of church and state and other foundational concerns of democracy.
In the US, if a statement is found to be one of opinion
?, the case is dismissed
? without inquiring further or requiring a response from the defendant. This is the correct policy.
[+] argument for: slander law requires higher and more appropriate standards of damages and fault
current cases
Two current cases illustrate some of the difficult issues in Canadian
libel law.
[+] p2pnet case
Jon Newton of p2pnet.net
? lives in BC and is being sued
? by Nikki Hemming
? of Kazaa
? who claim she's been
libelled in p2pnet posts outlining Australian court proceedings into her assets. "She also continues to demand the identity of a p2pnet reader who'd posted an anonymous comment included in the same story." -
reported at digital-copyright.ca? which also reported Newton's response.
"Our Canadian libel laws say 'guilty until proven innocent
?' and if Hemming wins, Canadian bloggers might as well pack up and close their Net accounts because the right of online freedom of speech will be killed stone dead," says Newton.
"And there's something else: as far as I'm concerned, an anonymous post is the same as a confidential source. I don't have to like a post, or even agree with it. But I believe that as an honest and responsible human being, I do have to safeguard the poster, if indeed I know who he or she is which in this case, I didn't."
Michael Geist
? agrees and
in his comments about this case claims that it "places the spotlight on the liability of Internet intermediaries. The importance of the issue extends well beyond just Internet service providers - corporate websites that allow for user feedback, education websites featuring chatrooms, or even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law." He notes also the gross asymmetry of the treatment of alleged
libel vs. child pornography
? in which "the Criminal Code
? does not require a site to remove content
? based merely on an unproven allegation
?. Instead, sites can only be compelled to remove such content under a court order
?. The same is true for other unlawful content
? such as
hate speech." Accordingly, child pornographers and deliberate hate mongers have many rights that citizens debating public issues and their hosts do not have.
[+] Crookes versus openpolitics.ca
There is no profile? of this case on openpolitics.ca itself: Comment on this case is being inhibited by the chief editor. No comment specific to it should be published on this page?.
For generic review of some
related issues, positions and definitions see slander
?, defamation
?,
anonymous sources, online journalism
?, bloggers rights
?, right of reply
?, right of refactor
?,
open politics in force,
malice,
freedom of political speech,
political virtues and
political vices.
Wiki