RSS FeedGrant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media
In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).
Importantly, the Defence applies not only to journalists and print-based publishers – the types of defendants in Grant and Quan – but also to non-journalist bloggers and users of other online media:
[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]
[Emphasis added]
Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:
- the seriousness of the allegation;
- the public importance of the matter;
- the urgency of the matter;
- the status and reliability of the source;
- whether the plaintiff’s side of the story was sought and accurately reported;
- whether the inclusion of the defamatory statement was justifiable;
- whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and
- any other relevant circumstances
In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:
[M]any actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]
[Emphasis added]
This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.
The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,
blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]
[Emphasis added]
Even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.
Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:
While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]
[Emphasis added]
Even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.
In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.
Originally posted on Defamation Law Blog
The Life and Times of Ivan C. Rand
From Volume III, Issue II of Amicus Curiae, Western Law’s Student Paper
Canada was a different place before Trudeaumania swept the nation, and the man we know as Ivan Rand, founding Dean of this law school and former Justice of the Supreme Court of Canada, was a product of his times. It would be easy to dismiss Dean Rand as an intolerant bigot, but as William Kaplan explained to an audience at Western Law on Nov. 11, [2009,] Rand was complicated character.
“Canadian judicial biography has been, with a few exceptions, mostly uncritical and largely celebratory, written by unabashed admirers,” Kaplan writes in his new book, Canadian Maverick – The Life and Times of Ivan C. Rand. “To my great surprise, this book turned out to be different.”
Ivan Rand was born and raised in the Maritimes and graduated from Harvard Law in 1912. It was his exposure to the American Bill of Rights that, according to Kaplan, differentiated Rand from other Canadian lawyers. And it’s Justice Rand’s decisions as a Justice of the Supreme Court that make his legal legacy so difficult to reconcile with his private views, which have been largely hidden until now.
By 1951, the court in Noble v. Alley assessed a restrictive covenant against selling property in the Grand Bend area to Jews, blacks, or those with “coloured race or blood.” It was Justice Rand who interrupted oral submissions by the respondent saying,“If Albert Einstein and Arthur Rubinstein purchased cottages there, the property values would increase, and the association should be honoured to have them as neighbours.”
Despite his position on restrictive covenants in this case, he was a member of two restrictive clubs that excluded Jews. He defended the right of Communists to hold elected positions, and famously opposed the internment of Japanese citizens, all the while refusing to meet his sister’s Acadian husband for 30 years because of his background.
“It’s this hypocrisy – because he did know better – that ultimately leads me to conclude: first-rate mind, third rate temperament,” said Kaplan, noting that the most influential judges are rarely collegial consensus builders. “Not such a bad combination.”
What, if anything, changed during his lifetime?
Kaplan suggests that Rand’s exposure to Jews in the Palestine Mandate may have led him to develop a more favourable impression of Jews. Rand was impressed by the largely secular, often highly educated and industrious, and was sometimes even disdainful of the religious establishment of the Holy Land. He believed that rational law could resolve all human conflict, and was a social engineer at heart.
Robert Mackay, one of Rand’s colleagues at Western who would eventually succeed him as Dean, recalls Rand’s rants against Jews and people with ethnic names that ended with a vowel: “Rand would declare he had enough of them.”
Yet he continued to donate to Hebrew University in Jerusalem for the rest of his life. A forest in Israel was named after him, and he would tour the country receiving awards.
So what is Rand’s legacy for this school?
Kaplan tellingly notes, “Almost all of his great civil libertarian decisions reversed the actions of state authorities in Quebec.” Mackay explained, “Rand had to decide who he hated more – the French-Canadian Roman Catholics, or Jehovah’s Witnesses.”
Rand believed that ethics could not be taught – either you had them or you didn’t. Western is now known as a pioneer in legal ethics education.
The Ivan Rand window in the Moot Court Room looms menacingly above all those who dare try their hand at advocacy. Rand himself believed that mock trials courts were entertaining, but not educational. He preferred his old 1909 Harvard law texts for the students.
Rand felt that women were good as solicitors but did not have the fortitude for criminal law, a notion that would not bode well for our classes in which women outnumber men , the legal aid clinic, or our struggling criminal law program.
Dean Rand defied utilitarian economics by taking surplus budgets and returning them to the university, much to the chagrin of his staff. He abandoned the administration of the law school only months after its opening to attend to a coal crisis in Cape Breton.
Yet the students loved him.
The Rand formula, where workers pay union dues irrespective of membership, is still one of the hallmark characteristics of Canadian labour law. One of Rand’s recommendations (which was never adopted) was that unions be recognized as legal entities that could sue and be sued [directly, and not through agents]. Another was abolishing picketing altogether.
Overall, Kaplan describes Rand’s own hand at labour relations as nothing less than “disastrous,” with nearly every stakeholder and political party expressing strong criticism. “Reforming labour law,” Kaplan said, “is best done incrementally.”
As our own Dean Holloway acknowledges, “it’s difficult to write fairly about Ivan Rand… What emerges is a picture of a principled man, who thought deeply about the best way to enhance the standards of this profession.”
Kaplan suggests that what makes Rand impressive is his ability to draw bright lines between his public and private life, especially when on the Court. And for a man whose vision in many ways may have been ahead of his time, perhaps that is the most we can ask for.
Legal Profession has not Adapted to Realities
Donna Nebenzahl writes in today’s Star,
Despite the gains of recent years, women in the workplace are still taking it on the chin, according to several wide-ranging studies.
A report released last year for the Law Society of Upper Canada’s working group on the retention of women in private practice indicated that the legal profession has not adapted to the “reality” of child rearing and its effect in the workplace…
This is not the only place where disparity shows up. According to a 2004 Law Society report, fewer women make partners than men and they seem to earn less across the board in comparable jobs – 32 per cent less in sole practice, 11 per cent less in law firms and 3 per cent less in government jobs.
Insite Victory
The InSite facility in Vancouver won its most recent hearing at the B.C. S.C.
See more at Junkie Life
Panel Proclaims Prorogation Problem Political
An expert panel on prorogation was convened on Thursday at the University of Toronto’s Faculty of Law. The panel featured law professor David Schneiderman, director of Fair Vote Canada Larry Gordon, Globe & Mail correspondent Michael Valpy, and political science professor Simone Chambers, and its goal was to engage in dialogue about Stephen Harper’s second prorogation of Parliament within a year. The panel was organized by Law Students for Democracy, with Camille Labchuk and Daniel Goldbloom hosting and chairing, respectively, the discussion.
There were two fundamental questions that emerged from the debate: 1) is the latest prorogation legal? and 2) if legal, is the prorogation an ethical abuse of power?
It was conceded by all parties (with the exception of Larry Gordon, who spoke exclusively about voting reform) that the prorogation is legal. It is certainly the prerogative of the Prime Minister to ask the Governor-General to prorogue Parliament. Even if it is perhaps against the spirit of the constitution, there is no black-letter law against prorogation.
So if prorogation is legal, is it right? Without explicitly saying as much, the panellists suggested that the answer is No. Both Schneiderman and Valpy pointed out that the prorogation process has been substantively abused only three times since Confederation: by Stephen Harper in 2008 and 2009, and by Sir John A. Macdonald in 1873 to avoid an inquiry into the Pacific Railway scandal. Chambers argued that it’s a matter of degree: while every past prorogation has been for the advantage of the governing party in some capacity, one must examine the degree of partisanship with respect to the reasons claimed for proroguing.
What were Stephen Harper’s reasons for proroguing? Valpy stated the obvious, that all of Harper’s ostensible reasons are disingenuous (see e.g. the Economist critique of Harper’s “recalibration” reason). Schneiderman suggested that the real motivation was that Harper wanted to avoid having to turn over documents related to alleged complicity in Afghan detainee abuse. Schniederman detailed the history of Harper’s misleading claims that his government was legally obliged to keep the documents hidden – claims that were blown out of the water by Parliamentary law clerk Rob Walsh. Schneiderman suggested the possibility that, had he not prorogued, Harper and cabinet could have been forcibly removed from Parliament for not respecting the majority vote to turn over the documents.
Harper’s behaviour, said Schneiderman, is part of a broader agenda to Americanize the Canadian constitution – evidenced by Harper’s insistence on separation of powers between the Judiciary, Parliament, and the “Executive”; also evidenced by Harper’s desire for an elected Senate.
The panel agreed that the Governor-General did the correct thing in 2009 by agreeing to the prorogation. The Governor-General is not expected to interfere with political affairs beyond what is asked of her; her role today is primarily symbolic, and we wouldn’t want her to begin exercising her black-letter prerogative.
There was debate as to whether Parliament could create a statute governing prorogation. Chambers thought that this would require a constitutional amendment, which is very hard to effect practically. Schneiderman said that it might be possible, and a similar problem is playing out in Harper’s proposed Senate reform.
Perhaps the most crucial point came from Chambers. She said that while the 2009 prorogation is technically legal, it is dependent on the citizens to voice outrage at the audacity of Harper proroguing out of such blatant self-interest. The outrage is manifesting itself in the infamous facebook group, the 10-point hit that the Conservatives have taken in the polls, and the planned protests that will occur all over Canada tomorrow.
In short, the prorogation problem is a political one, not legal.
Hatred Towards Jews and Muslims Linked
A person who hates Jews is more likely to hate Muslims as well, and vice versa. And people who go to a weekly religious service are less likely to hate a Muslim.
These findings come from Gallup poll results published this morning in a report, Religious Perceptions in America: With an In-Depth Analysis of U.S. Attitudes Toward Muslims and Islam.
Michelle Boorstein of the Washington Post said,
… the Gallup poll was prompted partly by Obama’s outreach to Muslim-majority societies and a desire to understand more about what shapes Americans’ views on Islam.
In a note accompanying the poll results, Gallup makes the argument that Americans’ prejudice against Muslims is at least partly fueled by misinformed beliefs. For example, people who believe Muslims worldwide oppose equal rights for men and women tend to be much more likely to report prejudice against Muslims.
The report states,
…feeling “a great deal” or extreme prejudice toward Muslims is not borne out of the absence of any information about Muslims, but rather arises from being exposed to negative media coverage of Islam and its followers.
This misinformation, especially through portrayals in the media, have a particular significance in the role of radicalization, as indicated in my published letter in the Globe yesterday. Daniel Simard and I also put together a paper related to this, Media Narratives in Times of Turmoil: Depictions of Minorities in Canada Post 9/11.
Boorstein also points to a Pew Forum poll showing that Muslims experience far more discrimination than any other group, by a wide margin.
The Gallop Poll found that 53% of Americans admitted to having negative views towards Islam, and 43% acknowledged some prejudice towards Muslims.
The report also states,
Variables Associated With Self-Reported Prejudice
Links Between Anti-Jewish and Anti-Muslim Prejudice
The variable most strongly linked to self-reported prejudice toward Muslims is self-reported prejudice toward Jews. Respondents who say they feel “a great deal” of prejudice — or extreme prejudice — toward Jews are about 32 times as likely to report feeling “a great deal” of prejudice toward Muslims. While Jewish-Muslim relations sometimes suffer because of the turbulence of the Israeli Palestinian conflict, among other reasons, these findings point to an area of potential cooperation for the two communities in addressing a common concern of prejudice toward each group. Previous Gallup research indicates that, compared with other religious groups in the U.S., Muslim Americans and Jewish Americans are most similar in terms of political ideology, education, and political party identification.
The findings should spurn greater cooperation between the Muslim and Jewish communities to work together in overcoming hatred and bigotry.
Bin Laden Busted Out of Jail by Westerners
It’s probably not what you think. This story comes to you from Liberia.
7 Police Myths Perpetuated by Media
Cezary Jan Strusiewicz of Cracked has the 7 Bullshit Police Myths Everyone Believes (Thanks to Movies):
#7.
Forensic Science is Magic
#6.
The Insanity Defense Lets You Get Away With Murder
#5.
Not Talking To Cops Equals Obstruction of Justice
#4.
Undercover Cops Have To Identify Themselves If Asked
#3.
Tracing a Call Takes a Long Time
#2.
Criminals Must Be Read Their Miranda Rights or They Will Go Free
#1.
Everyone Gets One Free Phone Call
(n.b. it’s American law, for interest sake only)
Not All Muslims are Terrorists, But All Terrorists are Not Muslim Either
It’s a common refrain in the media, that the threat of terrorism comes from Islamic extremism.
Not true, according to a new study revealed by researchers at Duke University and the University of North Carolina at Chapel Hill, Anti-Terror Lessons of Muslim-Americans, which suggests that only 6% of terrorist attacks on the U.S. are from Muslims.
CNN describes the inclusion criteria used for the study:
To be included on the list, an offender had to have been wanted, arrested, convicted or killed in connection with terrorism-related activities since 9/11 — and have lived in the United States, regardless of immigration status, for more than a year prior to arrest.
The study also notes that strong partnerships and support of Muslim institutions are necessary to prevent the radicalization of Muslims. To date, we’ve often have initiatives that accomplish the opposite. Muslim terrorists also had very little to do with Islam,
This research confirmed what has been observed in other studies of Muslim terrorists: most of those who engage in religiously inspired terrorism have little formal training in Islam and, in fact, are poorly educated about Islam. Muslim- Americans with a strong, traditional religious training are far less likely to radicalize than those whose knowledge of Islam is incomplete.
The implications of the findings also suggest there is disproportionate attention by the media and security officials on threats that are comparatively negligible, which may actually accentuate this specific risk over time.
Placed in context with data over the past 30 years, we get a very different picture (graph sent to us by a reader):
Terrorist Attacks on U.S. Soil by Group, From 1980 to 2005, According to FBI Database
Body Part Maker Aptitude Test (BPMAT)
Fast Future Research has released a report of the jobs of the future. Fortunately lawyers still made the list, but with a slightly different role that they call a “virtual lawyer,”
The internet is a major facilitator of innovation in both the legal and illegal realms. Hence a significant part of a virtual lawyer‘s time will be spent monitoring new legal developments and precedents that apply to the virtual world. Much of the legal territory remains the same e.g. disputes, contractual failures, ownership issues, intellectual property theft, sabotage, copyright infringements and trademarks. However, the complexity comes from the global nature of the web and the different legal jurisdictions that could be involved…
Virtual lawyers will make extensive use of technology – for example setting up bots and spiders to develop a reverse audit trail of suspect transactions and scanning the web for possible clues or experts that could help in the prosecution of a case. A key role will be to advise customers on how to set up online activities – particularly e-commerce transactions – in a manner that is legally sound across a range of jurisdictions. The goal is to prevent possible future prosecutions in areas such as online gaming and content download.
Here are some of the other careers you could have considered that probably wouldn’t have required a BPMAT either:
- Body part maker: Create living body parts for athletes and soldiers.
- Nano-medic: Nanotechnology advances mean sub-atomic treatments could transform healthcare.
- GM or recombinant farmer: That’s “GM” as in “genetically modified” or engineered crops and livestock.
- Elderly wellness consultant: As an aging population increases in size, we’ll need folks to tend to their physical and mental needs.
- Memory augmentation surgeon: Like Eternal Sunshine of the Spotless Mind, surgeons could boost patients’ memory when it hits capacity.
- ‘New science’ ethicist: With the rise of cloning and other ethically-dubious practices, ethicists will be needed to ford the river of progress.
- Space pilots, tour guides and architects: Space tourism will allow for space pilots, tour guides and the architects that will allow them to live in lunar outposts.
- Vertical farmers: The future of farming is straight up. Vertical farms in urban areas could significantly increase food supply.
- Climate change reversal specialist: Regardless of what you think about human-induced climate change, it’s clear we’ll need scientists who specialize in altering it.
- Quarantine enforcer: When a deadly virus spreads rapidly, quarantine enforcers will “guard the gates.”
- Weather modification police: If weather patterns can be altered and adversely affect other parts of the world, law enforcement will be needed to keep things legal.
- Virtual lawyer: As international law grows to supercede national law, lawyers will be needed to handle cases that involve people living in several nations with different laws.
- Classroom avatar manager: Intelligent avatars will replace classroom teachers, but the human touch week be needed to properly match teacher to student.
- Alternative vehicle developers: Goodbye, internal combustion engine. Zero-emission cars will need smart people to design and manufacture them.
- Narrowcasters: As in, the opposite of “broadcaster.” Media will grow increasingly personalized, and we’ll need people to handle all those streams.
- Waste data handler: Think of it as an “IT axe man”… for information. Waste data handlers will destroy data for security purposes.
- Virtual clutter organizer: Now that your electronic life is more cluttered than your physical one, you’ll need someone to clean things up — including your e-mail, desktop and user accounts.
- Time broker/Time bank trader: What’s more valuable than precious metals, stones or cold, hard cash? Your time.
- Social ‘networking’ worker: A social worker for the Web generation.
- Branding managers: These already exist for celebrities, but now everyone needs a “personal brand” so others can easily digest who you are and what you stand for.
ABC’s The Deep End
The stories of young associates in big law firms are legendary among law students, and it seems there’s enough fodder her for a television sitcom. Starting January 21, 2010, ABC is launching The Deep End, which follows the careers of five lawyers in Los Angeles.
Check out the interview with David Hemingway, the lawyer who quit his career to write and produce the show, on Bitter Lawyer.
Do We Need Courses in Ethics and Professional Responsibility?
Prof. Michelle Harner shares over at Concurring Opinions,
We started our spring semester today at Maryland, and I am teaching one of my favorite courses, Legal Profession. Having faced ethical dilemmas in practice (and unfortunately seen very talented lawyers disciplined, disbarred and jailed), I believe that this course is extremely valuable. I suspect, however, that most of our students disagree with me, which is why they typically wait until the last semester of law school to take this required course. In fact, the very first time I taught Legal Profession, I asked my class of 75 3Ls to raise their hands if they would “elect” to take Legal Profession if it was not required for graduation. Only one student raised her hand; I promptly commented that she was perhaps the smartest woman in the room. Since that first year, more students have raised their hands, but I attribute at least part of that increase to a note in prior students’ outlines to “raise hand when Prof. Harner asks . . . .”
Are professional ethics courses useful in law school? Are these better relegated to the bar admissions process and learning on the job? Or is it too late by that time given the pressures lawyers face, as Prof. Harner suggests?
