From previous postings on this issue (here and elsewhere), readers should be aware that I’m adamantly opposed to the existing “hate-speech” provisions of the Human Rights Act, and for that matter, pretty much anything that infringes in the least on the right to free speech irrespective of how hateful or objectionable it may be. I have to part company with some of my “liberal” friends on this matter, but to me, such things are just an unfortunate consequence of living in a free society; a “necessary evil” in much the same way as is government itself, as Thomas Paine so rightly said. In my opinion, there are a number of much better ways of dealing with so-called “hate-speech”... Sunshine, as the old expression goes, is often the best disinfectant; simply exposing hateful sentiments to the light of day where they can be properly ridiculed, mocked, scorned and derided is usually all that’s needed to discredit them and ensure their banishment from the public discourse. By contrast, applying the heavy hand of government to suppress them by means of Kafkaesque tribunals quite perversely has the opposite effect of ennobling them (as aptly illustrated by Jonathan Kay). Once cloaked in the contentious argument over freedom of speech that almost inevitably ensues, the loathsome content of the actual message is often obscured completely, or at least is relegated to tertiary consideration. A classic case of the law of unintended consequences at work, I suppose.
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. Little wonder that people come from all over the world to file libel suits in Canada, particularly in the province of Ontario.
As with the case of another highly litigious crank some may be familiar with, Wayne Crookes (also associated with the Green Party, curiously enough), who launched a sweeping libel action a while back against numerous individuals he alleged had made defamatory remarks on blogs and in various online forums, this latest action by Richard Warman is a matter that should be of legitimate concern to all bloggers and any self-respecting citizen worried in the least about protecting the right to freedom of speech in this country.
It’s important to note that one need not be in the slightest bit sympathetic with the likes of Kathy Shaidle, Kate McMillan, Ezra Levant, the proprietors of FreeDominion, or others named as defendants in the suit — goodness knows, they’d probably regard such drippy sentiments with utter contempt in any case — to realize that “libel chill” is most definitely in the air and freedom of expression, a core value of the Charter of Rights and Freedoms, is now under threat.
I may well be overstating the case here, but consider that simply calling him a “censorship champion” was regarded by Warman as defamatory pursuant to the libel action he filed against FreeDominion last year… Granted, there were plenty of other more highly creative epithets (e.g., a “felching fecalphiliac” being one of the more amusing ones) singled out for mention, but at the same time these were freely intermixed with other allegations that any reasonable person would likely deem to be fair comment. Quite ironically, one of them was that a commenter accused Warman of “attacking free speech” and another that he was “childish and looking for attention.” Hmmm. If such relatively harmless remarks are considered “libelous” then I’d venture to suggest that ALL bloggers are potentially at risk.
With regards to the actual substance of the latest complaint involving the infamous “Cools Posting” I have nothing to say one way or the other regarding the facts of the matter or the conduct of the parties involved, however, the aforementioned concerns with respect to the various comments made contingent to that matter on a number of different blogs are just as applicable. To me, they constitute fair comment and opinion, and as such, should be protected forms of expression. It’s truly unfortunate that what may well be a perfectly legitimate complaint on the part of the plaintiff has been conflated (whether deliberately or unintentionally) in such a hopelessly muddled fashion with expressions of opinion.
You might well ask why I’m writing this. Good question! Although I rather doubt it, I suppose the Google-happy Mr. Warman could conceivably take it upon himself to sue me, after all, I’ve repeated alleged libelous statements and have insinuated that he’s a “litigious crank” and furthermore have suggested by implication that he’s a self-appointed “Witch-Finder General” amongst other things. Well, all I can say to that is I wish him much luck in such a futile endevour — no blood will be forthcoming from this stone, I assure you. The reason is quite straightforward and perhaps rather naïve — it’s simply to express my concern as an individual about the state of free speech in this country. The inviolability of this particular right is something that I believe is absolutely paramount and is an issue that touches all of us in a quite direct manner. Debate on political issues cannot be robust and wide-open if the looming threat of a potential inquest under the Human Rights Act or a libel suit hangs over you. Is that really the sort of country we want to live in?
The time has come for legislative reform, not only of the Human Rights Act, but also of Canadian libel law in general. A good first step would be to reverse the burden of proof in lawsuits involving public figures: the plaintiff, not the defendant, should have to prove the statements in question are false. Furthermore, statements of personal opinion or belief should be exempted and the plaintiff forced to prove that the statements were actually made with malicious intent.
I wish the government, or the Liberal opposition if it ever manages to locate its testicles, would aggressively pursue these legal reforms with some vigor… but will they? Well, that’s very much up to YOU, isn’t it?
Update: Okay, maybe I’m not paranoid. The consequences are now becoming evident.
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