Tuesday, July 01, 2008
Canada - A major decision of the Supreme Court promotes freedom of expression, by Iba Bouramine
Today's decision by the Supreme Court of Canada about defamation law has shifted the balance from plaintiffs to defendants -- in other words, towards greater free speech. The court calls it a modernization, which it is -- phenomena like talk radio shows, partisan TV panels and the Internet were not around when defamation law was developing (it actually goes back 400 years). It also brings us more in synch with the U.S. approach to free speech, and breaks away from the European model of soft censorship.
In other words, it should terrify Canada's human rights commissions. I had no doubt before this decision that Canada's HRCs were conducting themselves in an unconstitutional manner -- exceeding the narrow censorship powers granted to them in the 1990 Taylor decision. Now it's a certainty that section 13 would be batted down by this free speech-loving court.
The facts of this case involved B.C.'s radio legend Rafe Mair, and a conservative activist named Kari Simpson. But the law applies to all cases in Canada going forward, not just theirs.
The decision is written in pretty plain English, unlike some of the 200-pages of opaque gobbledegook the court became known for in the 1990s that were likely the sign of indecision as much as anything. This decision is pretty clear.
Here are some key lines from the ruling:
In my view, with respect, the Court of Appeal unduly favoured protection of Kari Simpson’s reputation in a rancourous public debate in which she had involved herself as a major protagonist...
In the absence of demonstrated malice on his part (which the trial judge concluded was not a dominant motive), his expression of opinion, however exaggerated, was protected by the law. We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.
...Mair has a reputation for provoking controversy. With controversy has come a measure of commercial success. His listeners expect to hear extravagant opinions and, according to his counsel, discount them accordingly.
...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”, the Media Coalition contends, 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. Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.
...In much modern media, personalities such as Rafe Mair are as much entertainers as journalists. The media regularly match up assailants who attack each other on a set topic. The audience understands that the combatants, like lawyers or a devil’s advocate, are arguing a brief. What is important in such a debate on matters of public interest is that all sides of an issue are forcefully presented, although the limitation that the opinions must be ones that could be “honestly express[ed] . . . on the proved facts” provides some boundary to the extent to which private reputations can be trashed in public discourse.
The decision doesn't end defamation suits, of course. It merely moves the fulcrum a bit, by widening the scope of what constitutes "fair comment". Fair comment must still be rooted in true facts; but if those facts are clear, and the defamer's comments are clearly his own views, the court will give latitude to even "outrageous" and "ridiculous" opinions.
The rule of thumb for writers -- and bloggers -- remains: get your facts straight. But the good news for free speechniks is that, if your facts are accurate, you can be dramatic, critical and even wrong in your opinions. It's good news for bloggers -- and bad news for censors everywhere.
And I hope it keeps going on.
Iba Bouramine,
21 years old,
Born in Algiers, I have grown in Ahunstic
Labels: Canada, Iba Bouramine, Islam, Secularism
# posted by Francis Chartrand @ 1:17 AM 
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