Sunday, June 29, 2008

An argument against censorship under defamation threat

“The media should not live in constant fear of facing a libel suit every time a provocative commentary is published or broadcast, the Supreme Court of Canada said on Friday in a major [unanimous] ruling won by controversial Vancouver radio broadcaster Rafe Mair.” Globe & Mail

Mair, formerly a BC MLA for the Social Credit Party, is on the tame end of the shock jock scale. Mair had taken issue with a prominent activist promoting public support of a Surrey school board decision to ban three books depicting same-sex parents. He was sued for his provocative images of Nazi Germany and the Ku Klux Klan in a broadcast.

Ironical his anticensorship carried right through to the Supreme court hearing, the defamation case becoming a censorship case.

“An individual's reputation is not to be treated as regrettable but unavoidable roadkill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill' freewheeling debate on matters of public interest,” Mr. Justice Ian Binnie said.

Judge Binnie said that the key to a defence of honest belief – particularly in an era when extravagant overstatement is common – should lie in whether an honest person could have held the same opinion. Globe & Mail

Even way over here in Australia we can rejoice such a profound finding. I’m no lawyer and don’t fully understand the mechanics of cross jurisdiction precedent, but I am aware Canada and Australia tend to share ‘common law’ findings.

While I personally try to avoid inflammatory language I’m sure I cross the line into potential defamation at times. It is the nature of passionate commentary. In a world increasingly monstered by mindless litigation it is heartening to have a clear and sensible precedent if I am ever called.

LINK to the finding WIC Radio Ltd. v. Simpson


D.K. Raed said...

To me, this starts to resemble the freedom of speech issue. But because it involves a "public person", it's a little more involved. Certainly, if something is clearly understood as public commentary or opinion, it should not be considered in the same vein as a media report of fact. I think the media does need to be held accountable for truth vs lies, but the case you cite is merely one man's provocative use of images to promote his opinion of what constitutes censorship.

So, yes, while the courts are a remedy for defammation, it cannot possibly serve society well to have them tied up in litigation over an opinion. Did anyone honestly believe that Mair was seriously saying anyone was a Nazi or KKK member? He stated it over the air on a radio program for which his shocking opinions were well known.

I like the honest person/honest belief defense, but it does leave a lot of room for truly defaming public statements. The key to me is whether the person spouting an outrageous opinion is lying or merely being outrageous in a fashion he or she is well known for. Better start working on your public shock statements now, Cart, if you expect to be able to use it as defense later ... to establish precedence!

Cart said...

It was flagged in court as a freedom of speech issue. I’m not really sure about that, but differentiating between ‘opinion’ and reporting is important. When I was a reporter I had to keep my notes for months, as they were considered a valid, even true record of the situation.
I’ve never worked out how anyone else could decipher my own version of shorthand, but the notes worked half a dozen times to kill off threatened legal actions. I was never asked to explain, just hand over the notes. But I did have a reputation for careful quoting and reporting.
The trouble with reporting is the need to choose from a range of issues to present just one or two, the most newsworthy. I had a mayor wanted to rip my guts out once because I concentrated on a throwaway line that people living in a flood area only had themselves to blame.
The editor asked him if he said that and he admitted the comment and argued he said more important things that weren’t reported. I knew I’d skewed the story severely, the editor demanded nothing less for his news, and sent the mayor off with a burr up his arse.
I could have written an opinion piece on top of that and really driven it into the guy, but I expect I would have needed a precedent like this to win the defamation action.
In the end I guess I’m not a particularly shocking person, its so much easier to let people demolish themselves.

D.K. Raed said...

well of course the mayor wanted to gut you -- his throwaway line showed such callousness, he was unmasked. Good job!

Cart said...

DK, those subjective decisions are still at the whim of the reporter. I was probably right, but it was still only part of a longish interview.
I'm not sure there is any alternative to subjective reporting, the audience wants attention grabbers. How much more subjective the opionator?