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.

Bloggers Need to Learn Something About the Legal Limits of Free Speech

There is an interesting development around a libel action being taken against some Bloggers. The reaction from some in the blogosphere is this is ‘libel chill.” That is where a threat or the taking of legal action for libel is used to stifle free speech. That does happen but not every libel action is libel chill.

I have read the Pleadings in the Action against Google, but not the individual Bloggers. The Google portion of the Action contains some wording of the postings the Plaintiff says gives rise to the allegations of libel against the Bloggers in question. It reads to me as pretty serious stuff...if proven.

The anonymous Bloggers of the world have always bothered me mostly because they can do so much damage to people and reputations given the viral and inter-connected nature of the Internet. They can wreck this havoc with virtual impunity.

I have participated through comments on a posting on Saskboy’s site focused on the recent CBC TV’s The National news item on libel chill and blogging. It is an interesting exchange around some of the issues and implications of defamation, the roles and responsibilities of Bloggers and the necessary restraints on free speech in our laws.

This is important stuff as we see the evolution of the Internet and Blogging that has enabled every citizen to be a journalist and publisher...or a cyber-bully.

Will Peter Lougheed's Comments Set the Alberta-Ottawa Agenda?

UPDATE: AUG 18 - I recommend you read Blogger and lawyer Robert Janes take on the implication of the Lougheed comments. His URL is http://rjmjanes.blogspot.com/2007/08/environment-clash-predicted.html

You have to love it (or be terrified depending on which side of the issue you are on) when a news story takes on a life of its own. Such is the case with the former Alberta Premier Peter Lougheed and the comments he made at the recent Canadian Bar Association earlier this week.

I promised on Wednesday to comment further on Mr. Lougheed’s speech once I had read it. I have requested a copy but have not read it because I can’t. His office replied to my request as follows: “Unfortunately a copy of the speech is not available as Mr. Lougheed delivered the speech by reference to his personal notes.”

Fair enough, he is a gifted speaker and very knowledgeable on the subject matter. He has commented on issues of the pace of oil sands development and the ecological and social impacts and implications before. His comments last Tuesday at the annual gathering of the Canadian Bar Association. I checked the CBA website and it does not even identify Mr. Lougheed as being on the program of their meetings in Calgary this past week. Hummm!

One can't help but wonder about the forum, timing and the motivation behind Mr. Lougheed's comments. For me, this initiative of Peter Lougheed is pure political theatre of the highest order, and I applaud it. His political instincts are as sharp as ever. You have to admire how he has skillfully and politically positioned issues, created an event and defined relationships in one carefully constructed stream of consciousness.

Even without a written text, one can conclude Mr. Lougheed’s remarks were not made as an aside nor were they impromptu. That has never been his method of operation. These remarks have to be his considered opinion and that opinion is foreboding and politically charged.

Already John Baird, the federal Environment Minister is in full damage control. When Lougheed says the emerging and inevitable fed-prov battle looming between Alberta and Canada “will be ten times greater than in the past.” Baird’s pull quote in the Edmonton Journal today says it all. “Our government would never do what was done with the national energy policy of the early 80’s.” Ouch!

While Lougheed is reported as “surmising” about such matters in his speech, everyone should realize that he is not unschooled in such matters. He was Alberta’s Premier in the days of the National Energy Policy, which is believed by many to be the sole source of the demise of Alberta’s economy and destruction of our emerging political clout in the 80’s.

So here we have, it one man with great influence and respect, making some significant personal observations at a forum where he appears not even to be on the program. Serendipity or opportunism? Does that matter? His comments focused on some of the most serious issues of the day. The rapid and pronounced media uptake with front page headlines of his warnings have resurrected past ghosts and bogeymen.

In one carefully considered trip to the podium Peter Lougheed has actually done more to set the future political agenda of Alberta and focus it around the critical relationship between the energy economy and emerging ecology issues. He has also done much to frame the politics on this policy concern in terms of good old Canadian jurisdictional wars between Alberta and Canada.

The major difference is that the constitutional and jurisdictional wars Lougheed sees this time has Ottawa controlled by Harper, a power controlling, centralizing Conservative. In Lougheed’s NEP wars he dealt with Pierre Trudeau, a centralizing and power controlling Liberal Prime Minister.

One wonders, based on reports of Lougheed’s comments this week, if he sees this change in leadership as a distinction without a difference when it comes to taking on Alberta...or is Ottawa just Ottawa where Alberta is concerned?

In Alberta Lougheed's Warnings Trump the Harper Cabinet Shuffle

The Federal Cabinet shuffle was announced yesterday and the same day Peter Lougheed stole the headlines from Harper, at least in Alberta and the Globe and Mail.

As for the Federal Cabinet, I defer to The Enlightened Savage and his analysis. Save for one point – Jim Prentice is going to have his hands full. Productivity and competitiveness will be two issues that will not be tackled in the time left before an election. However continental energy supply and Canadian-US relations will be a big issue for him to deal with.

With Maxime Bernier in Foreign Affairs and American angst over homeland security – and reliable energy supply security being a big part of that concern will give Minister Prentice plenty to chew on. I posted an Editorial on Policy Channel on this issue if you are interested.

As for Peter Lougheed, with his speech yesterday at the Canadian Bar Association annual meeting, he has now changed the political priority agenda in Alberta and has positioned our fed-prov dynamic in the most dramatic of terms.

Will the Harper government engage in an environmental battle with Alberta over oil sands development and trust the Supreme Court to decide the issue on a Reference. I do not think so. Will the trade-off between environmental concerns and growth of the oils sands cause a constitutional crisis 10 times bigger than the NEP? I don’t think so.

I will have more to say about Peter Lougheed’s speech and the implications and fall out in later postings – and after I have read the speech. One thing for sure – Lougheed’ speech, as reported, is going has made a huge difference in what Alberta will be about and how we will relate to the rest of Canada.

Thoughts on Why Ed Stelmach Won the PC Leadership

My previous post was about why Dinning and Morton lost the 2006 PC leadership. That commentary was based on a study we did on leadership qualities Albertan’s were looking for in the the summer of 2003. A visit to the previous post will give you some context on the leadership attributes we considered.

What was it about Ed Stelmach that the Albertans liked about him when they showed up to chose him as their next Premier last December? The most significant positive Preparation driver for leadership in Alberta was someone with Business experience. None of the leadership candidates were strongly identified with having a business background, including Stelmach. However, his advantage was that he was also not identified with the other very negative Preparation attributes of being a professional politician, a lawyer or an academic. Other candidates were strongly identified with these negative attributes and that benefited Stelmach.

He was able to be identified with issues around the importance of Alberta’s role in Canada and the world. This was partly because of his past portfolios like Agriculture and top of mind issues like BSE and concerns about Alberta’s beef export access to American and other markets. His stint in International and Intergovernmental Affairs helped him understand and explain Alberta's place in a Canadian and international context. Stelmach’s recent success at the Council of the Federation, where he spent time explaining Alberta’s growth challenges and environmental plans, helped persuade most of the First Minister’s to sympathize with us and give us the benefit of the doubt and accept that we were engaged and up to the task.

In the end, I believe it was his personal qualities that made him the most attractive as the next PC leader and Premier. He was seen as an honest man with integrity and he campaigned aggressively on that theme. Even as a politician, he still farmed. That framed him to many as a potential leader who would not lose contact with the real lives of real people and not just identify and deal with the beautiful and bountiful or the rich and famous once he was in office.

His obvious ability to listen and even his lack of media skills would be perceived as positives in the campaign. Remember from the last posting, any media savvy candidate was seen as someone not to be trusted. They tended to be perceived as slick and masters of spin. The quality of being media savvy was a big leadership negative to Albertans in our survey results.

The other high value communications skill the survey showed was the ability to bring clarity to issues and to be a good listener. Stelmach is a very good listener. He sees and appreciates the complexity of most modern political issues and has a mind that likes to explore their implications and nuances. As a result clarity is sometimes sacrificed to his predilection for a fulsome understanding and "explanation" of the issues. In that way he is more like Jed Bartlett of the West Wing than George Bush of the Right Wing.

Being articulate was ranked as such a minor positive attribute that it could be considered as a neutral matter in our survey results. During the campaign, and ever since, the mainstream media in Alberta has made much of Stelmach’s “communications challenges.” Stelmach obviously lacks the polished “skill” of mouthing media-speak sound bite answers. That seems to drive the main stream media to distraction because they are so used to the professionally packaged politician. Citizens are not as concerned so long as they feel they can trust his judgement and his grasp of the issues. After all how many citizens get to (or have to) sit through an entire news conference or press briefing?

The second most important positive attribute for leadership from our study was being able to be an agent of change and to bring forth new ideas and support new ideas from others. This is where Stelmach's real potential lies, in championing changes. He has lots of change in progress in areas like energy policy, royalties and infrastructure funding. He is setting new priorities with an emphasis on innovation and technology, to concerns about managing growth and even raising issues about literacy.

He has instituted democratic reforms and reorganized the legislative policy committee structures to be all-party inclusive. He has introduced health reforms like legislation for smoking bans in public and work places. He is committed to cleaning up the teachers and other pension debts which was a holdover from Klein’s era. He is reviewing roles and responsibilities of agencies boards and commissions and the provincial government relationship with them including regional health authorities and municipalities. And he is instituting lobbyist legislation.

The record already shows Stelmach is an originator and supporter of new ideas and is a positive champion as an agent for change. None of this as yet to resonate with the mainstream media and, as a consequence, it is far from top of mind with the public. He is perceived by some, including me, as not having communicated very effectively nor has he executed political power particularly well.

There may be a change afoot however. The recent meetings in Moncton with the provincial Premiers at the Council of the Federation, Stelmach is being given media-based credit, for the first time, for his governance ability. He showed his capacity to articulate effectively, bring clarity to complex issues like climate change and GHG emissions and explain them in the context of accelerating economic growth pressures. And he has made the point of how Alberta's growth is benefiting the rest of Canada. All of these elements were identified by Albertans in our study way back in 2003 as the high value positive leadership attributes that we wanted for the next Alberta Premier.

Communicating clearly and executing the Premier's governance and political roles more effectively is a big part of what the PC government needs. These are key elements towards the Progressive Conservative Party of Alberta revitalizing, rejuvenating and retaining its position as the preferred voter choice to govern the next Alberta.

An election is less than a year away and the Red Zone is a few months away. If our survey findings are still valid, letting Ed be Ed in ways that show off his personal qualities is one of our "secret" weapons to this continued success. Showing off Stelmach's personal qualities and capacities, especially as a champion for positive change, is big part of what we need to do to reconnect with Albertans. There is no time to waste Mr. Premier.