A longtime resident of Uxbridge, Ted Barris has written professionally for 40 years - for radio, television, magazines and newspapers. The "Barris Beat" column began in the 1950s when his father Alex wrote for the Globe and Mail. Ted continues the tradition of offering a positive view of his community. He has written 16 non-fiction books of Canadian history and teaches journalism at Centennial College in Toronto.
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You can't say that!
Earlier this week, I sat with an elderly friend. He knew how much writing I do, so he picked my brains about writing his memoirs. He wanted to know if there were any circumstances under which he could be sued for writing a memoir. While I pointed out I'd been writing a column in the Cosmos and numerous other newspapers and as a blog for years, I suggested I was not necessarily an expert on memoirs. Nor had I ever tested the courts in a libel case.
“What if I wanted to call somebody an idiot?” he asked.
“Was the person an idiot?” I asked. He nodded. “That's not necessarily the point,” I went on. And I asked a more important question. “Can you prove it?”
I know it sounds as if it's an odd question, but the point is important when it comes to determining if something is libellous in court or not. In other words, truth is a complete defence against a libel suit. But the person or organization who publishes a potentially damaging statement has to prove that the statement is true in order to win the case against libel.
In addition, I suggested to my elderly friend that if the facts of the person's activity were proven to be idiotic, or if the inference became clear because of a set of provable facts - i.e. that the actions the person had undertaken illustrated idiotic behaviour (without necessarily using the word) - then he might well have the grounds to call the actions “idiotic.” See what I mean?
But I reminded my friend about another aspect of libel. Again, in a libel case, it's up to the defendant to prove the statement is true. It is not up to the plaintiff (the person making the libel charge) to prove that the statement is false. In libel, truth is the only defence.
The timing of my friend's query was ironic.
Did you notice the story this week about the Canadian fashion model who won a case in court forcing Google to reveal the identity of a blogger who (the model said) had defamed her. The Internet and its loudest proponents have long claimed that their greatest asset is anonymity. In other words, bloggers can get away with saying anything, because most of them use pseudonyms or no names at all, with impunity.
Not anymore. Last week, New York Supreme Court Judge Joan Madden ordered Google to reveal the email address of the defaming blogger. According to the judge, fashion student Rosemary Port had written five posts that libelled Liskula Cohen as a “skank” and a “ho.” In response to Google's outing Port, she says she'll sue Google for $15 million for failing to protect her privacy.
I say, “Good for Liskula Cohen” for challenging the kind of privacy that allows people to hide in anonymity to make vicious accusations. On the other hand, I believe if Ms. Port had been fully above board and forthright in her accusations (i.e. identifying herself) and could prove such accusations, then the law and Google should defend her all the way to the Supreme Court. Once again, truth is a complete defence.
I remember a media case back in the 1960s, in which CBC TV reporter Norman Depoe was highly critical of then Prime Minister John Diefenbaker. The two men tangled verbally during a scrum in the halls outside the House of Commons on Parliament Hill. The Prime Minister accused Depoe of defaming him (damaging his reputation).
“Are you prepared to make that claim here - outside the House?” Depoe asked.
“I am,” insisted the Prime Minister. And the gauntlet was thrown.
You see, there is also what's called “privilege” inside the House of Commons. A Parliamentarian can call any Member of Parliament or (in this case) any member of the public, anything s/he likes and - because it's on the floor of the Commons - can do so without fear of a libel suit. The principle of “privilege” is to encourage, not stifle, the free flow of information. In the Commons, a politician can call anybody anything (short of “liar”) and get away with it, because free speech is deemed in the public interest.
I mentioned that to my friend writing the memoir, because (as it turned out) he once worked in the public service for the Ontario government.
“Is there any way I could print my comments about 'the idiot' without being sued?” he asked me finally.
“Unless you can prove it's true,” I said, “only in your diary.”
Given the history of this particular gentleman, I can only imagine how juicy his “diary” must be.
