Tuesday, February 14, 2006

Kinsella v. Bourrie: Round One

The quickest way to become the talk of the blogosphere is to get sued for libel. While it may make for sleepless nights and heavy legal bills, it does wonders for your blog traffic,as Warren Kinsella's lawsuit against Mark Bourrie's Ottawa Watch will do.

DISCLAIMER: The opinion expressed below is solely my own and is not intended to be given or acted upon as legal advice. I will not accept any liability if anyone here is so reckless as to act upon it to their detriment.

If Mark Bourrie and Ottawa Watch were located in the United States, as were Warren Kinsella, Kinsella would have to demonstrate that as a public official (which, as a senior staffer in Jean Chretien's office at the time when events in the allegedly libellous statements are alleged to have taken place, he arguably was), he would have to demonstrate actual malice on Bourrie's part.

That is to say, he'd have to prove that Bourrie knew that they were false or published them with reckless disregard about their falsity. (See New York Times Co. v. Sullivan, 376 U.S. 254.)

However, since Kinsella was in private life at the time the statements were published, the burden of proof would be somewhat lighter on Kinsella.

Up here in Canada, however, Kinsella may have a less challenging burden of proof and test to meet, as the Supreme Court of Canada specifically rejected the strict "actual malice" test in Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130 , on the basis that the Charter cannot rewrite the common law outside of any government action.

Significant difference: the Charter applies effectively to government action alone, while the U.S. Bill of Rights takes a much broader approach, protecting such rights as between private citizens instead of just against the government.

Kinsella will merely have to establish that the statements were published, and they will be presumed false unless Bourrie can prove that the statements were true, or were fair comment. That is, that a reasonable person could have held the view in those statements, regardless of Bourrie's motivations for publishing them.

Hat tip to Wikipedia , though again, don't take what Wikipedia says as gospel, and certainly not what I say as gospel either.

Bloggers are certainly not above the laws of libel and defamation, and we must all be careful to avoid crossing them. But neither should we succumb to libel chill and find ourselves trembling at every keystroke for fear of a lawsuit.


Dr. Dawg said...

Warzie will have quite the burden to prove actual damages in this affair, given that he had just taken a job at National Post.

Indeed, proving actual damages is an uphill battle for anyone who claims to have been defamed. The courts will toss this one, read a stern lecture to Warzie for wasting everyone's time, and award costs to Bourrie.

Glen said...

One would hope that you are correct, Dr. Dawg. Warren couldn't buy this kind of publicity. Maybe him and Bourrie got somethin' worked out?