How I Changed Libel Law
My victory in Canada’s Supreme Court should free up speech.
Mair at the mic.
I won a law suit! In itself that’s so rare that I can’t help myself from telling you again. And I hope you’ll pardon my cheek in telling you what I think it means.
I genuinely feel for the plaintiff, Kari Simpson, because it shouldn’t take nine years, and I assume six figures worth of costs, to find out whether or not you’ve been libelled. Justice delayed is justice denied.
For me, it was very satisfying to get near the end of the line knowing that I am connected to a legal decision that truly has changed the law for the better, and actually may have stopped the decline of free speech.
I’m not going into the case itself -- you can easily “Google” it -- except to say that the lead judgment of Mr. Justice Binnie made me very angry when he referred to the kind of work I did as “shock jock,” something not even my worst enemy would accuse me off. I have written the judge, giving him a resume of my media career and asking that he change that part of the judgment. Not even the trial judge -- we shared a mutual loathing -- said that about me, contenting herself to smile sweetly and tell me that she always listens to the CBC (not when I’m on, I’m guessing).
This judgment sets forth the standards for defamation to be found in areas of public interest and they are:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognizable as comment;
(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?
(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.
Although this falls short of the American standard (see Sullivan vs. New York Times) it goes a long way towards killing “libel chill.” Let me explain.
Until now, the inhibitor of free speech was not just the fear of losing a lawsuit, but in being in one in the first place. The Simpson case gives you some idea of how long a lawsuit can last and how much it can cost. If you are a large corporation or a very rich person you can say to someone wanting to sue you, “Go ahead... be my guest.” Because access to the law is confined to those with money or power or both.
In the perfect world, if A alleges harm to him by B, someone judges the matter quickly and effectively and that’s that. In the real world, the commencement of a libel suit starts you down a very long, slippery slope and there’s no backing up. It can be a ruinous process for most individuals, for even if you win, your legal bill will be the size of some small country’s annual budget.
The high cost of litigation has given rise to what is called a “SLAPP suit” (strategic lawsuit against public participation) or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent; often the plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion, and abandons the criticism.
SLAPP suits are wonderful ways for the big and the strong to shut up critics, and in a country where free speech has been on the decline, a great tool for the establishment.
Paradoxically, SLAPP suits are a boon for mischief makers who often could wheedle a settlement out of a shaky case simply because the defendant -- often a newspaper, radio or TV company -- would pay a modest sum to get rid of a pest.
I am not saying that Kari Simpson’s suit against me was a SLAPP suit.
However, the standards laid down by the Simpson case should make it easier for the media to analyze and editorialize on public affairs. Now that the standard is, roughly, that an honest belief and absence of malice is a good defence, perhaps we will start having the sort of public discussions a free country should revel in.
The Simpson case tells us something else of equal, if not greater, importance: we must overhaul our civil justice system. When one reads, as I did the other day, that young lawyers should, after two or three years, make around $200,000 a year, you have to give your head a shake. Where is it written that lawyers providing a service sheltered by a legal monopoly can charge not what the service is worth, but what the traffic will bear?
For as long as I can remember, people have been examining the legal system with an eye to meaningful reform -- such an exercise is now in progress -- and nothing of substance happens. No matter how the rules of procedure for civil suits are juggled and amended, they still provide lawyers the roadmap for stretching cases on interminably.
I know whereof I speak because I was once in the game and played it very well.
The incentive to a lawyer is not to shorten proceedings and save costs, but quite the opposite. One is not paid to be a great lawyer but a great biller. In the firm meetings, no one cares that you did a fine job on a pro bono (free) case, but how much you billed. Indeed the stories are legion of lawyers charging out more billing hours than there were hours to bill!
While, not unnaturally, I’m glad I won my lawsuit and glad that the plaintiff lost, I come away from the case with this nagging thought: how did it take nine years, God only knows how many hours in examinations for discovery, plus a hugely expensive paper war and 13 judges for the plaintiff, in this case where the facts were uncomplicated, to find out she had no case?
The Supreme Court of Canada has clarified the law of libel and made it much easier for people like me to comment on public affairs. That’s how it should be in a society that has shut up all muckrakers and tenderized all public comment.
We needed that.
Now we need a system where access to law is not denied to all but the wealthy.
Related Tyee stories:
- The Soft Muzzle
Fear, and self-censorship, muffles the muckraking in Canadian journalism. - The Letters of the Law
The ABCs of a 'rarely dull' year in tech law. - Tyee's New Approach to Comments
A system designed to promote thoughtful posts
![[Tyee]](http://thetyee.cachefly.net/ui/img/ico_fishie.png){kind=small}
Skywalker
25-08-2008
Enjoyed that!
One day someone will insist that laws be written in plain language, the court procedure will be written out in a series of steps to follow and all the mystic about what a lawyer does for a living will be exposed. People will then be able to do their own work. Never mind the old lawyer's self-serving cliche about "A person who represents himself...and all that." Most lawyer have a far to high opinion of their abilities and using them for a legal matter just adds to the cost and the uncertainty of the outcome.
I always thought the Simpson case was a bit odd in that she always made judgments about the life styles, morals, and convictions of others, particularly those in politics. How could she then have expected any different reaction. Good on you Rafe! You deserved to win.
Fiat lux
25-08-2008
There's an old Hungarian
There's an old Hungarian proverb that says:
"Tell the truth and get your head bashed in"
I grew up in a fascist society, where everything was censored. My highschool class of Grade 11 published a hand litographed paper in 1943. I was one of the editors. We had to submit every word to the government censors, who often cut large chunks out from the writings of 16 year old boys.
My first experience with the freedom of speech happened at Hyde Park Corner, near Marble Arch, in June 1948. I couldn't understand a word of the speakers, but when some of it was translated for me, and I saw a couple of Bobbies standing there with their hands behind their backs, I couldn't understand why they weren't arresting them?
But when I was told that it was "democracy"
and "free speech", then later on, when I started reading the papers, like the Daily Mirror, I became addicted and never got over it.
Apart from blogs, like the Tyee, the only paper in BC that would dare to publish my stuff is Jerry West's Gold River Record.
http://memweb.newsguy.com/~record/flux/index.htm
Glad to hear that Rafe won ! At least we can feel that the justice system has not been completely taken over by the corporate
mafia. Yet..... ! But I'm sure they're working on it.
Ed Deak. Big Lake.
SharingIsGood
25-08-2008
Congrats, Rafe
Congratulations, Rafe!
I can empathize with both, the plaintiff and the defendant in this case. I have listened to you for years, and I would never paint you malicious. My feelings go out for the plaintiff, as well; but only if her actions were without malice.
I have watched wealthy bullies push thoughtful, hard-working and kind-hearted people around for years. When a victim of their bullisome ways takes a stand, it often takes years in civil court to resolve. Insurance companies are the biggest of the bullies. If one is fighting a bully and his or her insurance company, one is generally in for the fight of his or her life. Insurance companies, as a matter of policy, avoid payouts whenever possible and fight litigation tooth and nail. Their goal is to wear the plaintiff down. It does not matter that the plaintiff is right and that the actions of their client and their lawyers destroy the health and finances of a decent human being. They do this because it also acts as a deterrent against future litigation. Of course, the lawyers almost always win, nearly always get their money.
Campbell and his clan have exacerbated this travesty by reducing the number of courthouses in The Interior. Working people in smaller Interior communities can no longer afford to represent themselves even in Small Claims Court due to the limitations of travel, and removed access to legal texts relating to their case. Along with the removal of courthouses has come the removal of local law libraries. In jumping the legal hoops placed in front of a clearly wronged plaintiff who just wants what is rightfully his or hers, he or she has to neglect work, family, friends and often personal health to see their case through.
Civil court is a bad system that favours bullies because bullies have no feelings for the people they hurt. Bullies are not concerned with justice, they are self-important and only concerned with winning. For bullies, winning can even take the form of losing a court case when the bully has been able to inflict years of worry and expense upon their victim. The bullies can be either plaintiffs or defendants.
Bullies hate that others are allowed free speech. Bullies have no use for truth except when it serves their needs. Thanks for working to thaw libel chill, Rafe.
shabbaranks
25-08-2008
Law is a Specialisation
Skywalker:
Why should it be assumed that a layperson should be able to perform in the legal world?
We do not demand that one day, all building codes be freed from the tyranny of the journeyman, nor do we resent the fact that only doctors can perform surgery. Law takes skill and is the culmination of much education and experience, not unlike most trades and professions.
Law is also peculiar in that it strives to eliminate ambiguity, which gives rise to long contracts, wordings and provisions and sub-provisions. These are all designed to create definitions and concepts of a "reality" that we can all subscribe to.
I agree that the law system is economically burdensome to most, but to suggest that the people in the profession are maintaining their own elitism simply for the purpose of getting paid is just wrong.
In any event there are a number of self-counsel press works out there that allows just what you describe. The onerous process is designed to protect people, unfortunately, as you point out, most of us don't understand, or don't have the will/capacity to understand, and we are forced to rely on professionals.
Not unlike my broken toilet or ruptured spleen.
G West
25-08-2008
shabbaranks
I assume you're unaware of the following:
A move toward using plain, non-technical language and removing jargon from the law has been driven by the Supreme Court of Canada.
The Supreme Court has been removing Latin words from its rulings and altering the format to make them easier to follow for people reading electronic versions on a website perhaps you're unaware of this as well.
A move to adopt clear language is being driven in Canada by organizations like the National Judicial Institute and the Montreal-based Canadian Institute for the Administration of Justice. An interesting institution where new judges come and have their writing critiqued by English professors.
Mr. Justice John Laskin, an Ontario Court of Appeal judge who helps to organize the Institute's week-long seminar is quoted as saying: "It's a really widespread movement ... Let's face it, it's the bread and butter of what we do. We hear cases and decide them and try to explain them to the parties and the public."
Jargon, specialist language and cant are still frequent in the legal fraternity - that hardly means they are desirable or necessary elements of the process.
As others point out, a good lawyer is, all to often, a good biller - and that's about all.
sanamark
25-08-2008
Lawsuits
People threaten law suits all the time. Then they talk to a lawyer and find out what they will cost. Want to see $10,000 evaporate? Give a lawyer a retainer.