OSCJ File #08-CV-35297SR

I am going to take some heat for this, but I have to be honest. It is a matter of public record that some people have said that the claimant[1] in this matter actually wrote of his own hand some very particular very nasty things indeed. That is prima facie libelous, unless one has the legally acceptable evidence to prove it true.

This is not about freedom of speech. This is not about the HRCs. Yes I understand they are contextually relevant. Yes I am in favour of freedom of speech. Yes I am opposed to some of the recent behaviour of the HRCs. Nevertheless, it remains the case that this is a civil suit brought under RSO L.12[2], the Libel and Slander Act of the Province of Ontario, and there is nothing wrong with the Act per se. [Update: I've changed my mind about the Act, see below.]

And to go from the ridiculous to the bizarre, some people are saying that they are going to withhold support from their political party of choice over the matter of a civil suit that the party can't do anything about. That is called a political death wish.

If one wants to address one's elected representatives on the matter of changing the libel statutes of Canada and her provinces in the years ahead, fine, go ahead, that's democracy. But one can't just come waltzing in demanding that hundreds of years of defamation law be thrown out the window because one executed one's tactical maneuver poorly.

I thought folks 'round these parts were in favour of law and order and the Magna Carta and all that good stuff, yet people blatantly flaunt old and well established libel common law and statutes?

Unless one can prove that the alleged perpetrator actually performed what one claims, then if said claimant wants to complain, one will be found to be in violation of the law, for good reason. There are other exceptions, fair comment, public good, but as far as I can tell so far, they don't apply here (I hope I'm wrong).

How much would you pay for that? But wait, there's more. Now I'm going to get into even more trouble, but damn it, I've warned about this over and over and over again. Based on my archives of my comments at SDA over the last two years, I've averaged on the order of more than one comment per month reminding that libel is not a joke. I once wrote: "You write it, you own it, guaranteed".

It's not just publishing a link. That's fine if the fair comment exception applies. That's not what happened here. What happened in the original case here was a rush to judgment. I was there when the story broke. After a half-hour's research I thought: "Some folks here are going out on a limb; this evidence is suggestive but not legally conclusive."

Eventually though, after eschewing a rush to judgment (as I now eventually write this essay), pursuant to the original discussion last January I finally wrote:

I think there is a lesson for all to study here. There are good reasons why it is appropriate to distinguish in one's rhetoric between what is alleged and what is known, such reasons including veracity and methodology. On the one hand, I have on occasion made the mistake of not doing so in the past. On the other hand, in the HRCs update I sent to my mailing list on Sunday, I mentioned the developing story we are discussing here as follows: "It is alleged that at least two CHRC staff or ex-staff have been actually planting so-called hate speech at web sites, and then complaining about said sites to the HRCs. In one case the alleged planted agitprop concerns a respected Canadian senator [...]".

To be clear, I'm not dumping on anyone for what has happened, indeed, not all the facts are yet fully known. Rather, my point is that I would have hoped that (especially after the disastrous rush to judgment in the Duke Lacrosse case) people would be more aware of the good reasons for separating allegations and opinions from claims of fact. Perhaps this situation will help the learning experience along, not just for anyone in particular, but for everyone, including both sides of the aisle.

In my entire archive of the last two years of my comments at SDA I have successfully (more than I would have thought without reviewing my actual words, which I have now done) avoided saying X about real person Y unless that's what the data convincingly says. Not perfectly, of course, I'm human. Yet I understand that frenzied anger is a waste of resources, that revenge is a dish best served cold, and that in any given case, one can make an argument out of an abundance of circumstantial evidence, but not out of a single piece or two (well, other than the argument that if one wants to pursue the matter, one should hunt down more circumstantial evidence).

The operators within the bureaucracies that are being taken to task within the broader context in this situation not only know how to work the system, they also know how to sucker people into misbehaving. One can't keep one's powder dry once one has pissed in it.

It's a damn shame so many people got sucked into this by their own hubris. Oh, look at me, they think, the web, I can say whatever I want. No you can't. And now this tactical error is distracting from the strategic issues at hand. On the other hand, perhaps this is part of the process of the blogosphere growing up.

And I have to admit, I was lucky. When I got my first email account in '74, I also got a three-page thou shalt not memo that included a few notes to the effect that that would be illegal. So I don't fault anyone for going through this learning experience, it is what it is.

Will I financially support at least some of the defendants in this case? Yes of course, I have in the past, and there's more on the way. I'm on side. We all make mistakes. I agree with the strategic goals. I ask only one thing: please try to learn from this to, in the future, refine your tactics toward the better attainment of the strategic goals at hand.

[1] 08-CV-35297SR Statement of Claim
[2] RSO L.12: Ontario Libel and Slander Act

Update, 2008-04-11

I received email about my essay above from an old friend who asked, if I may paraphrase, why is it that a known celebrant of the joys of beverage alcohol is the one making sobering statements? It is interesting, in a way, I s'pose, perhaps I can get a Canada Council grant for a play about it, or perhaps a big-budget poem.

I found an essay at the Red Tory blog that causes me to reconsider my conjecture above to the effect that there is nothing wrong with RSO L.12:

"The present state of Canada’s libel legislation is another bête noire of mine. Simply put, it’s archaic (quite literally medieval, dating back to the time of Henry VII in fact) and in desperate need of overhaul. Under the current legal regime, one can be sued for anything said about another person that allegedly damages their reputation. If sued, the onus is on you to prove the truth of your statements; the fact that you genuinely believed them to be true is not good enough. Even truth is not an absolute defense — if the court finds you told the truth but your intent was malicious, you might lose anyway."

That succinct description corresponds with my understanding, which is why I think that so many reasonable arguments that people make are just not relevant as a matter of law. Yet we agree there remains a problem. Therefore the problem must be the law itself. Thinking about Red Tory's words has now lead me to think that there is indeed a problem with RSO L.12 and similar statutes.

As currently promulgated, one is not allowed to allowed to maliciously write or speak the truth in Canada. That's not good. In fact, it's a loophole masquerading as an oxymoron. Now keep in mind that malicious is used in its legal sense here (remember, in-domain jargon counts), that is, "An act done maliciously is one that is wrongful and performed willfully or intentionally, and without legal justification".

I constructed a Karnaugh map and it simplifies to three cases to consider. Keep in mind that this model is only designed to operate within the context of a libel claim, otherwise these prescriptions may be irrelevant.

1. Utterance is Provably True

   • Truthful statements must not be prohibited by law. The notion of malice is therefore moot, because truth can't be wrongful (which is required for malice). This is where we have the big problem at this time. People can claim malice because they think it is wrongful that they are hurt because someone uttered a truth about them. That's just stupid. A society based on privileged dishonesty is something I can do without.

   • If claimant goes to court, claimant pays defendants time and expenses, including personal time costs computed at defendants actual income level, plus some reasonable overhead rate for distracting the defendant from his normal life. This cost-plus model is important in order to discourage nuisance suits.

2. Utterance is Not Provably True, No Malice

   • You must apologize if asked. Why wouldn't you? Remember, this applies only in the context of a libel claim. "You offended me. Sorry I offended you." I think that under legal circumstances this is reasonable social behaviour. We're trying to rewrite the law here, not build a utopian system doomed to fail from pathalogical social rudeness. And don't forget that this only applies if case (1) doesn't apply.

   • If apology given upon request or without request, no damages. People are running around worrying about names hurting them to the detriment of remembering to worry about sticks and stones. Have you ever noticed that skin gets thicker with age? Grow up.

   • If claimant didn't ask for an apology, back up one step, ask.

   • If claimant goes to court, after asked & denied, and wins an apology, defendant pays claimant's time and expenses rated as above.

3. Utterance is Provably False, With Malice

   • I think this should be a sanctionable offence. False is already proscribed in some cases as fraud, and if one makes a false statement willfully and intentionally, or as I would prefer to word it, knowingly, in the context of libel, well, sorry, you shouldn't have done that, because you're in big trouble now.

   • Claimant gets punitive damages. That's what they're for.

If my model were in effect, and if the allegations about the claimant in this case were shown to be true, claimant would reimburse defendants. If not shown to be true (requiring the claimant to prove the false is not logically tenable), then it's a matter of a proper apology, at least as soon as asked for (or sufficiently, but not necessarily, before asked for), plus if apology asked for, denied, and then won in court, reimbursement. Only if the defendants in a matter like this knew they were posting a falsehood do I think that punitive damages should apply.

As Red Tory points out, my model is not in effect in this case. Yet either way, I still think that a rush to judgment, unless one's hand is forced by temporal circumstances, is a bad idea, at least when considered from the perspective of one's own good.

Yours, &c, Vitruvius

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I have now turned comments off again at the Sagacious Iconoclast, because I don't want to have continuing responsibility for managing them, but it would appear that Blogger does not allow me to turn off comments without hiding the comments that were already made. Hmm.

So, I have copied the comments that were made into this article per se. I do sincerely wish to thank those who have commented, many of you who go back quite far with me in this Intarwebdiscussion thingy. As I've now expounded upon, there are many points you make that I agree with, that the law doesn't; and I now better understand the need for change in the criminal and civil libel and slander statutes themselves. This is what I love about this media, those occasions when considered discourse actually helps me refine my understanding.

I am of course interested in discussing this further with anyone interested and interesting, you can send me mail via gmail.com to the vitruvius2 account. (Vitruvius1 died a couple thousand years ago.)

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