Dean Del Mastro vs. The Internet

By Aaron Wherry - Friday, October 26, 2012 at 8:00 AM - 0 Comments

The Conservative MP suggests Parliament should think about dealing with anonymous Internet commenters.

One of the best ways to end on-line and electronic bullying, libel and slander would be to force people posting hurtful comments to properly identify themselves. This morning I read comments on a news story posted on an electronic news publication, many of them could only be described as hateful rants. The common denominator is that none of them identified the person that wrote them; this strikes me as something that parliament should address.

Armed and libellous?

By Stephanie Findlay - Monday, May 16, 2011 at 9:50 AM - 14 Comments

An international spat between Greece and Germany was sparked when Venus de Milo, a Greek marble statue of Aphrodite—arguably the most famous armless goddess in the world—made a controversial appearance on the cover of the German magazine Focus. The problem? Her right arm was intact and she was flipping readers the bird. The magazine’s cover story—“Swindlers in the euro family”—explored German concerns regarding the bailing out of debt-stricken Greece, and outlined the nation’s supposed “2,000 years of decline,” including tax fraud and failed construction projects.

The cover was condemned by the Greek president shortly after it hit newsstands in February 2010. And now, more than a year later, six Greek citizens are taking legal action against Focus—alleging the cover was defamatory, libellous, and responsible for the denigration of Greek national symbols. Along with nine other employees of Focus, Helmut Markwort, the magazine’s founder, is due to appear in an Athens court on June 29. Despite facing two years in prison if found guilty, Markwort is unfazed: “I’m not on the run, and I’m also not afraid that I will have to go to prison.” He says he has a “clean conscience” and that he was simply doing his “journalistic duty.”

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Great moments in sock puppetry

By Colby Cosh - Monday, April 26, 2010 at 8:35 AM - 16 Comments

Orlando Figes, the renowned Sovietologist of London’s Birkbeck College, discharged a double-barrelled shotgun into his reputation this past week, becoming the latest scholar to get caught using an online alter ego—or “sock puppet,” in the technical parlance—to wage war on rivals and settle old scores. The chief investigator was Rachel Polonsky, a Russian-lit specialist who once printed a scathing review of one of Figes’ books and had heard through the academic grapevine that the notoriously belligerent historian didn’t take it well.

On April 12 Polonsky noticed that her latest work had attracted a curiously slanted one-star review on Amazon.com from a commenter nicknamed “Historian”. She knew immediately who was behind it. To borrow from her narrative of Figes’s rumbling:

“This is the sort of book that makes you wonder why it was ever written,” Historian began. “Polonsky, it turns out, is not an academic, as claimed in the blurb, but the wife of a foreign lawyer.” …I clicked on the “See all my reviews” link beside Historian’s name, and read all ten. As well as trashing my book, Historian had trashed three books by [rival Soviet historian] Bob Service, and the book by Kate Summerscale that beat Figes and The Whisperers to the lucrative Samuel Johnson Prize in 2008.  “It is better to go to Figes’s The Whisperers,” Historian told Amazon readers in his hatchet-job on Service’s Stalin.

All it took was one click on Historian’s profile to link to the incriminating nickname ‘orlando-birkbeck’. How could he have been so careless, I marvelled. The nickname was generated when Figes set up his Amazon account to buy books. When he created Historian’s profile on the same account in 2008 and began to publish online reviews, he doubtless did not inspect the details of this profile—never pressed the link on his own name that led straight to the incriminating nickname.

This hilarious ineptitude might have remained nothing more than a subject of dinner-table snickering in ivory-tower circles, but friends of Polonsky who had been told what had happened rushed to Amazon to point out that Figes was rubbishing competitors and praising himself while in transparent mufti. A salvo of libel threats from Figes’s lawyer followed. Fortunately, Service was able to able to obtain evidence unambiguously linking the “orlando-birkbeck” identity to Figes and his office address.

Confronted with this material, the cornered Figes passed up the chance to do the smart thing and confess all. Instead, he threw his wife under the bus, having his lawyer tell reporters on the evening of Apr. 16 that “My client’s wife wrote the reviews. My client has only just found out about this, this evening.” Figes’ wife is a law professor, and the historian’s face-saving claim that she had been spraying anonymous venom online seems to have been universally regarded as an untenable fairy tale. And so it proved on Apr. 24, when Figes finally came clean, let his poor missus off the hook, apologized twice to all and sundry and then some, and shuffled off on sick leave.

It is a fascinating case study full of warnings for anyone who relies on his reputation enough to be tempted by anonymity at all. (Good rule of thumb: if you want to say something anonymously, stop and ask yourself why the hell you can’t sign it.) Sure, Figes’s use of his wife as a human shield is a standard-setting feat, a Beamonesque leap in sheer son-of-a-bitchery. The sock puppetry is easier to understand. It is a plunge off a short pier that it is too easy to imagine blundering down. No one seems sure just what employment consequences Figes might face; creating an imaginary friend to say of oneself “I hope he writes forever” isn’t punishable behaviour, just contemptible and creepy.

Meanwhile, the case for English libel reform has found a fresh justification—one so perfect that the parties to the dispute might almost be suspected of staging the whole thing. But while Figes’s rabid, threatening behaviour might border on the literally incredible, it is all too common. People in the news business aren’t well-placed to point this out, but if you construct any reasonable list of history’s ten most famous libel cases, the number in which some legitimate interest in truth was actually at stake will probably not be more than two. Oscar Wilde and Liberace sued over suggestions about their personal proclivities that are now known, without much doubt, to have been accurate. Whistler and Ruskin fought idiotically to mutual exhaustion over a review that, by contemporary British standards, would be considered rather soft. The tormentors of old John Peter Zenger technically didn’t even argue that the seditious material in his newspaper was untrue. Of the well-known libel cases from the past that I can name off the top of my head, given five minutes and a stick of gum, about the only one in which definite consequential inaccuracies are known to have been perpetrated is Times v. Sullivan. As a very general rule, it’s not outright lies that make people angry enough to call a lawyer.

[Mindblowing bonus link for hardcore fans of Soviet history: turns out there really was a Hotel Bristol, sort of!]

[Bonus link for fans of the unrelated Canadian poet Robert W. Service: health advice from his forgotten nonfiction book Why Not Grow Young?]

Bittersweet justice for Singh

By Colby Cosh - Thursday, April 15, 2010 at 9:37 AM - 48 Comments

Simon Singh MBE, the celebrated science writer and documentarian, has officially won his libel tilt with the British Chiropractic Association. In April 2008 Singh wrote a column for the Guardian about the persistence of pre-scientific ideas in the British chiropractic trade. What most people now think of as merely an expert form of massage began with the claim that spinal maladjustments were the source of virtually all disease in humans, and some chiropractors still believe they can cure a lot more than back and joint pain. Singh wrote:

You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.

(Singh’s column went on to discuss the controversy surrounding the 1998 death of Saskatchewan chiropractic patient Laurie Jean Mathiason.)

English libel law is so tough on defendants that the world’s rich and offended will torture jurisdictional logic to the point of incoherence if it means their complaint can be heard in an English courtroom. But the BCA had it easy; Singh was trapped right there on the island with them. They took him to court. And only him; they chose not to name the Guardian in their claim at all.

English libel requires the judge to issue pre-trial rulings on the meanings of offending passages. Singh, whose piece had appeared in the Comment section of the Guardian, argued before Sir David Eady that his use of the word “bogus” meant only that there is no good evidence for the effectiveness of the impugned treatments. But the judge not only closed off the fair comment defence; he ruled, without giving much indication that he was paying close attention to the arguments or the relevant text, that the term denoted conscious and deliberate dishonesty. This shifted a frightful burden of proof onto Singh, requiring him to show not only that British chiropractors were offering useless and unverifiable treatments, but that they did so with the certain and specific knowledge that they were useless and unverifiable.

It became clear almost immediately that the BCA had overplayed its hand. Eady’s ruling rightly raised a worldwide clamour against the depraved state of the law and the health of free inquiry in the land of Newton and Darwin. (This has helped put libel reform on the agendas of all major parties in the current UK election.) It is, after all, almost not enough to say that science “depends” on the freedom to make tough evidentiary criticisms; considered socially, science is practically equivalent to the possibility of making them. Meanwhile, the beam of a million-watt searchlight had been attracted to the claims and conduct of the British chiropractic business. In a canonical demonstration of the Streisand Effect, the country’s statutory regulator of chiropractic, which holds the activity and advertising of practitioners to an explicitly scientific standard, was obliged to launch literally hundreds of investigations into strip-mall spine-crackers.

The harm that British chiropractic has done to itself is incalculable; meanwhile, it has had to give up hope of impoverishing Singh, who had Eady’s ruling overturned by the England and Wales Court of Appeal on April 1. In asking a public controversy concerning a question of evidence to be a matter for a libel suit, wrote the Lord Chief Justice, the BCA was inviting the court to serve as “an Orwellian ministry of truth”. The court, he added, must decline to do so. (He did not neglect to throw in a pinch of old John Milton and his Areopagitica.)

One ought not to admonish the BCA for abandoning its libel action; it was self-evidently the right thing to do. But what does it say about British libel law that the Association did so almost immediately once the fair comment defence was made available to Singh—a commentator by profession, one whose standing to assess and challenge scientific evidence could hardly be higher? Just one month ago, Singh announced that he would be ceasing his newspaper column for good. One hopes he will reconsider, but it is still uncertain that he will recover his own defence costs, and the time and effort he has expended will never be recouped.

And another one on responsible communication

By Colby Cosh - Sunday, December 27, 2009 at 1:38 PM - 2 Comments

Q: Is Jeffrey Dvorkin’s analysis of the new defamation-law scene the product of expired eggnog? His piece entitled “Libel law reform: Be careful what you wish for” warns that the recent Supreme Court decision is “no early Christmas present” for Canadian media companies, and since that is exactly how I characterized it, I feel entitled to object to his contrarian Hail Mary.

My guess is that media law departments are now advising chief editors to restrain their journalists from doing more aggressive reporting unless they can prove that every effort (including a demonstrable commitment to editorial resources) has been made to get all sides of the story. …In any future libel action, the onus will now be [on] the media organizations to prove that every reasonable effort has been made to contextualize a story.

But that’s true only if they intend to take advantage of the all-new defence they have just been handed. The Court didn’t remove or diminish any of the existing libel defences that might already have motivated news investigations, including truth, fair comment, and privilege. We don’t know just how practically available the new defence will turn out to be, but at worst we are left where we started: anything one could publish in confidence before the new ruling can still be published in confidence now. Sure, the “early Christmas present” may be nothing more than the equivalent of ugly plaid socks, but it does come free and clear, with no strings or liens or novel obligations hiding in the bottom of the box.

How the devil does business

By Colby Cosh - Wednesday, December 23, 2009 at 2:34 PM - 11 Comments

As the content of the Supreme Court’s “responsible communication” ruling propagates, I am seeing and hearing a lot of despairing wails of “Oh, TMZ will just love this!” Well, I’m sure the folks at TMZ love it when someone complains about them—usually, one guesses, in between visits to the site. In a mere matter of months TMZ has managed to replace the poor old Enquirer as the go-to synecdoche for the irresistible evils of celebrity-stalking.

But as popular as gossipy media content is, people don’t pay much attention to how it is generated. If they did, they would never imagine that the new “responsible communication” defence, which is designed to protect careful investigative reporting in the public interest from being nitpicked to death, has much to do with the kind of machine-gun journalism that TMZ practices.

Go on, visit the TMZ home page right now. Where is most of this stuff coming from? About two-thirds of it, at a guess, is founded on police tips and privileged court documents of one sort or another—flat, libel-conscious, factual summaries of the details of arrests, real-estate sales, family-law filings, police investigations, accident reports, and the like. It’s all produced by guys hanging around courthouses and police stations, much of it is in the public domain, and very little of it would be jeopardized by any version of defamation law, or at least any version in which truth and qualified privilege were defences. (It is also rather convenient to TMZ that the deceased have no right of action in libel.)

Really, there is not even much actual copy: TMZ depends very little on stylishly salacious tittering, and very heavily on the unique streaming effect that is created by a long sequence of barebones 75-word stories about celebrity transactions and troubles. You wish your staid local broadsheet was this information-dense. And what’s the mortar that fills in these bricks, which are costly to assemble but don’t involve much defamation risk? Occasionally, it consists of spoonfed stories from PR people trying to promote their clients’ own interests. Who was TMZ’s source for the details of Dr. Conrad Murray’s TV deal? Dr. Conrad Murray. Who broke the big news about Steve Tyler going into rehab? Why, it was Steve Tyler.

Throw in the occasional paparazzi photo, TV or radio clip, and stupid contest, and you’ve built yourself a media giant without having to spend much money on lawyers (though I’m sure they have some pretty good ones on the payroll). We read TMZ, leap to the wildest and most cynical conclusions about the celebrity gods and their sordid Elysium, and blame the messenger for our own mythomania. TMZ isn’t the problem, buddy.

An irresponsibly quick reaction to "responsible communication"

By Colby Cosh - Tuesday, December 22, 2009 at 1:53 PM - 42 Comments

Don’t expect much from your journalism elite today, citizens: we’ll be busy celebrating our early Christmas gift from the Supreme Court of Canada. It was widely anticipated that the SCC would follow other Commonwealth jurisdictions in creating a new “responsible journalism” defence to defamation. It’s one that encourages contextual analysis of defamatory words, rather than casuistic focus on individual terms; creates less of a “strict liability” environment for journalists; and allows for the repetition of defamatory statements if the mere fact that those statements were made is itself news and the statements were properly attributed and set in context.

None of that is surprising and all of it is quite desirable. But before I get too far into this magnum of Krug, I’ll tell you what else leaps out at me in the new Magna Carta:

1. Even given that the Court was going to mimic other Commonwealth countries, it still had an array of options in defining “public interest” for the purposes of the new defence. The definition is chose is a broad one, influenced by past Canadian jurisprudence on the “fair comment” defence. Here’s the relevant lingo from the headnote [emphasis mine]:

To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.  Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.

2. The Court has not chosen, or not yet chosen, to confine the availability of the defence to journalists working for old media in the traditional manner. It consciously did the opposite:

In arguments before us, the defence was referred to as the responsible journalism test.  This has the value of capturing the essence of the defence in succinct style.  However, the 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.

The definition of “responsibility” that publishers are asked to observe is essentially a description of good journalistic practice, so the defence will be available to non-journalists to precisely the degree in which they’re really doing journalism and doing it well. And working journalists will have an extra layer of protection insofar as their work is documented, checked by editors, and discussed with the new court-created definition of “responsibility” explicitly in mind. Still, the new defence is, quite properly, there for everybody. You won’t need to show some sort of professional license to appeal to it.

3. When the journos are finished high-fiving each other, they’ll probably start to feel slightly less upbeat pretty soon. It’s rarely observed in the debate over defamation reform that the problem of “libel chill” really contains two distinguishable component issues: freedom of expression, and uncertainty about what can be published and what can’t. The creation of a “responsible communication” defence will get more journalists (and non-journalists doing journalism) off the hook in the end, and should thus discourage some vexatious or wholly adventurous prosecutions and notices. It is less clear that the creation of a complex test for diligence in reporting, one that sets out a list of seven overlapping questions that isn’t even exhaustive, does anything to promote certainty.

Publishers can get away with more than they did before, but how much more? There’s no caselaw yet: the “responsible communication” defence is a newborn baby. Will the cost of defamation insurance decrease at all, once media outlets adjust their practices to take advantage of the more obvious gains made before the SCC today? Defamation certainly just became a much more complicated topic in the law: the legal costs of each individual suit are likely to increase.

So this decision isn’t exactly a Prague Spring of “libel chill”. If we wanted to get rid of “libel chill” we could adopt a rule tomorrow that “All articles containing the letter ‘q’, but only those articles, are defamatory.” That would make editorial judgments and defamation trials easy, and eliminate all “chill”—i.e., the existence of doubt about whether some subject can be approached and aired without risk. Some degree of “chill”, at some margin of verifiability, is the price we pay for the existence of sensible defamation law that honours freedom.

Free speech wins one

By Andrew Coyne - Friday, June 27, 2008 at 5:19 PM - 0 Comments

Nine years later, Rafe Mair finally gets the monkey off his back: Supreme Court throws out libel case against outspoken BC talk show host

The judgment includes some uncharacteristically clear language from the Court in defence of free speech:

The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression,” Mr. Justice Ian Binnie said for the majority today.

“There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence.

“When controversies erupt, statements of claim often follow as night follows day, not only in serious claims [as here] but in actions launched simply for the purpose of intimidation.”

There is nothing wrong with laws that ‘chill’ speech which is false and defamatory, Judge Binnie said. “But chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship.

“We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones,” Mr. Justice Ian Binnie said, in a spirited defence of free expression in an era when extravagant over-statement is commonplace. Continue…