Monday, August 20, 2007

More Ideas on Libel and the Internet

I have been made aware of Chris Tindal, a fellow Blogger who gets it on this libel chill thing. He is worth a read and makes some important points on the implications for Wikis and libelous postings. I think the same concerns may be there for aggregator sites too.

I do think some of the things he says need some comment. He says:

"Canadian libel law is very old, having evolved from British common law (meaning
law that evolves based on the rulings of judges over time, forming legal
precedent). One of the most interesting things about libel in Canada is that it
reverses the burden of proof, such that the defendant is actually guilty unless
they can prove themselves innocent."

In my opinion the history of libel is "old" but it is the that it is constantly being updated by case law and it is those judicial decisions that keeps it current. Current is a relative term and no doubt the case law in defamation is lagging given the dynamics of the Internet and the Blogosphere. It is not totally out of touch and it deals with libel chill quite effectively as far as I am concerned.

The other point I would challenge is the contention that there is a reverse onus in areas of libel. The Defendant, alleged publisher of the comments that are claimed to offend and damage a reputation is not guilty trying to prove themselves innocent. They controlled the comments, context and events at issue. They merely have to prove their comments were fair comment, or they did not say them or if they did say them, they did not mean them, or they said them, and meant them, they were the truth. That is not a reverse onus. That is the minimum level of responsibility required and inherent in publication and should be considered every time a Blogger hits the Publish button.

The proof of publication is pretty easy for the Plaintiff, it is in the media after all and that is what gives rise to the claim of libel. Proving the identity of the author in the Blogosphere is potentially more difficult given that so many Bloggers (too many to my mind) hide behind anonymity. The other hurdle for the Plaintiff is that they must give evidence and prove loss of reputation. If no one actually believed the libelous post accusations about a person because it was so outrageous, they may have a winning case but minimal damages.

Published apologies go to mitigate damages and that is why you almost always see MSM publishing apologies and corrections if there is any possibility of liability for libel or slander. Chris makes a fundamental new point however related to mitigation of damages. He notes that the Plaintiff has full and unfettered access to the very same Internet and audience as the original publisher of a libel. He can rebut or correct the record himself very inexpensively, effectively and timely because he is also a citizen journalist and publisher.

My hope is this unique power of rebuttal and clarification via direct access to the Internet and the Blogosphere offers the best defence to any lawsuit or efforts at libel chill. The Defendants in the current case are also using the power of the Internet to bring forth a claim of libel chill in this case. I have no seen anyone yet say the comments that were made were fair comment or true or to apologize for making them. They may have and I have not been made aware if this has happened but I would like to know. One Defendant did go to court to claim they were not part of the group that made the post or the link and the court accepted their evidence and removed them from the lawsuit. That defendant effectively used the position "I did not say that."

Ironically if someone who feels defamed uses this Internet access avenue for publishing their own rebuttal or clarification and it does not work or rehabilitate their reputation, maybe they did not have a positive reputation in the first place and then their damages for any libel are again minimal. I don't know if the Plaintiff has engaged in any Internet reputation restoration or rebuttal either and would be interested if it happened.