Canadian media want old libel laws updated
p2pnet news view Freedom | P2P:- Canada’s ancient libel laws urgently need to be brought into the 21st digital century, otherwise, the press can’t, “continue to fearlessly publish tough stories which better society unless the courts modernize the country’s archaic libel and defamation laws, the Supreme Court of Canada was told,” says the Globe and Mail.
“For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English speaking world,” said well-known Vancouver media lawyer Dan Burnett.
He’s representing p2pnet in a defamation case launched by Nikki Hemming, the woman who runs Sharman Networks’ Kazaa, the P2P file sharing application that’s front and centre in the vast majority of RIAA sue ‘em all cases.
Libel law, “developed in an ancient era which we would today consider backward, tyrannical and repressive,” says Burnett. “It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established. (Brown, Law of Defamation in Canada, 2nd ed, ch 2).
“Professor Brown notes that the common law of defamation has been described by scholars and judges as `artificial and archaic` and characterized by ‘absurdities’, ‘irrationality’, and ‘minute and barren distinctions’ (p 1-3).”
The ‘right to be wrong’
Today, anyone who publishes, and can prove, they acted according to the standards of professional journalists should get protection, states lawyer Richard Dearden, acting for the Ottawa Citizen in a Supreme Court of Canada appeal that, “could establish a new defence against defamation lawsuits”.
It challenges media organizations to justify why journalists should be given a greater “right to be wrong,” continues the Toronto Star, quoting Dearden as citing the public as “a stakeholder” and “beneficiary” of the free flow of information.
“The Ottawa Citizen, backed by several other large media organizations, argued today that the Supreme Court of Canada should endorse a ‘public interest-responsible journalism’ defence that would shield reporters from lawsuits and protect the public’s right to know, even if the truth of an article cannot be proven,” says the story, going on »»»
The high court reserved its decision, but if the judges agree, it would represent a big development in Canadian common law that would protect media organizations from being found liable as long as they could prove all fair and reasonable steps were taken to ensure a published story was fair and accurate.
“The public benefits from a rigorous press that performs its watchdog and its bloodhound role,” argued Citizen lawyer Richard Dearden, who said Canadian law has not kept pace with other commonwealth jurisdictions in the United Kingdom, Australia, New Zealand, South Africa, India, Jamaica and the United States.
‘ … of little use to sensationalist media …’
Lawyer Brian Rogers, for the Canadian Newspaper Association, the Radio and Television News Directors Association, and the Canadian Association of Journalists among others, said getting to the truth is sometimes a “messy process,” and publication of a statement that is shown to be false could lead ultimately to the truth, says the Toronto Star.
“The Canadian Civil Liberties Association said the law now allows reputation to ‘trump’ free speech,” the story says. “Even in a car crash, a plaintiff has to prove fault, said lawyer Patricia Jackson.”
The judges, “grilled representatives of both sides of the argument equally,” several times, expressing concerns that any reforms not be to the detriment of those seeking to protect their reputations,” says the Globe and Mail, continuing »»»
The reputation becomes the roadkill of the public interest,” Mr. Justice Ian Binnie interjected. “How can you say that reputations continue to be protected, if you also say that errors are sometimes inevitable, and that you just have to suck it up and move on?”
Mr. Dearden said that the responsible journalism defence would be of little use to sensationalist media whose scribblings are not truly furthering the public good.
He also stressed that it ought to be open to everyone from bloggers to public interest groups that post damning comments on their websites.
“If it is in the public interest, then they have the right to be wrong?” Madam Justice Rosalie Abella summed up.
“If they have acted in the public interest, yes, they would have that right to be wrong,” replied Paul Schabas, a lawyer for the Toronto Star.
Case ’shines a light’
The case centres on a libel action brought by a former Ontario police officer who claimed he was defamed in published news stories that alleged he misrepresented himself to New York authorities in the aftermath of 9/11, says the Canadian Newspaper Association, adding:
“While judges at the Ontario Court of Appeal found that the defence of ‘public interest responsible journalism,’ established by courts in Britain, should be allowed in Canada, it did not allow the Ottawa Citizen to use it in its appeal.
“The case shines a light on the restrictiveness of current libel law for, among other reasons, even though the Citizen reported information provided by police officers that was corroborated at trial, a jury found some of those statements to be defamatory and awarded $100,000 in damages.”
p2pnet vs Kazaa
In the p2pnet vs Kazaa defamation case, Sharman Networks, the owner of P2P file sharing application Kazaa, and Nikki Hemming, the woman who runs it, accused me of defaming them.
Early on, Sharman Networks dropped out, but Hemming continued and the case has been dragging on ever since.
Thanks to Canada’s antiqued laws, with a lawsuit from a multi-million-dollar corporation hanging over my head, and over my wife and daughter, you could say I’ve already been found guilty and punished without ever having been to court.
Hemming says I defamed her. But for me, it’s wholly a freedom of speech issue at the centre of which is the identity of an anonymous comment poster.
I don’t know now, and I’ve never known, who that person is.
Itai Leshem, an Israeli lawyer, claimed ownership and has always said he’d be willing to talk to Hemming. So far, however, neither she nor her lawyer have shown any interest in taking up his offer.
I’ve always hoped the case would be settled peaceably, lending credence to Hemming’s advertising claims that she and her product, Kazaa, are firmly behind P2P and the P2P community.
But she now wants to go to trial in February, 2010.
Not long after this started in 2006, friends of freedom of speech organised a benefit concert in Toronto to help raise funds for my defence.
I also wrote a song which kicked off with »»»
Freedom of speech ain’t a God-given right
Your freedom of speech can vanish in the night
‘Cause if you let ‘em,
They’ll steal it away from you.
Then they’ll have you where they want you and they’re never gonna let you go.
Jon Newton – p2pnet
Globe and Mail – Update libel law, lawyers argueFebruary 18, 2009
least protective of free speech – Canada, a haven for libel lawsuits, October 27, 2006
RIAA sue ‘em all cases – Kazaa, the RIAA and Jammie Thomas, October 17, 2008
Toronto Star – February 17, 2009
Canadian Newspaper Association – Newspaper, Media Groups Ask Canada’s Supreme Court to Accept “Public Interest Responsible Journalism” Defence in Libel ActionsFebruary 17, 2009
benefit concert in Toronto – Free speech, libel and the internet age, July 31, 2006
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