UK: “No defender of liberty should use the libel laws”
She should grow up’, one Evening Standard reader commented in response to the paper’s ‘exclusive’ about Chakrabarti’s threatened legal action. Indeed, she should. Burnham’s comments were a snide, pathetic excuse for political argument, but Chakrabarti’s over-the-top reaction to his puerile remarks in a small-circulation magazine was infantile and attention-seeking. As Martin Ivens rightly pointed out in The Sunday Times, ‘both “victims” have lapped up the publicity’. And how many people would have heard of Burnham’s comments if Chakrabarti hadn’t made such a song and dance about them?
However, the most worrying thing about this sorry affair is the fact that the head of Liberty has no qualms about threatening to use England’s notoriously censorious libel law.
As David Pannick QC explained almost a decade ago in The Times, ‘the current state of the English law of defamation is impossible to reconcile with any developed concept of free speech….Our libel law assumes that life is lived in a gentleman’s club in which damage to reputation is one of the most serious injuries that a person can suffer.’ London, often dubbed ‘a town named Sue’ by American journalists, has long been the libel capital of the world.
In 1997, the US Maryland State Appeals Court refused to recognise an English libel ruling, arguing that the principles of English libel law failed to measure up to basic human rights standards and were ‘repugnant’ to the First Amendment ideal of free speech.
PLUS: note how long it took the case below to wind through Canadian courts. My apologies in advance for having to ask you for donations for the next ten years…
On the other hand, this Supreme Court decision might mean our fight will be shorter.
Note too however that the person being “defamed” was an “anti-gay” conservative, so it isn’t surprising that our liberal Supreme Court said it was ok to compare her to Hitler. I get compared to Hitler three times a week, and I’m not suing anyone.
Vancouver’s controversial “shock jock” radio talk show host Rafe Mair is not liable for comments he made over the air almost nine years ago, the Supreme Court of Canada ruled Friday — setting a precedent that could make establishing a defence for defamation suits easier.
The justices ruled unanimously that, although Mair clearly defamed Kari Simpson — comparing the local activist to Hitler and the Ku Klux Klan for her remarks about homosexuals — his comments were protected as fair comment.
The decision upholds a previous decision from the B.C. Supreme Court that Mair had adequately met the requirement of the fair-comment defence, a protection afforded to foster free speech and avoid lawsuits that would have a “chilling effect” on public debate.
In October 1999, Mair, a well-known host on CKNW radio, read an editorial regarding Simpson, a high-profile social activist. Simpson opposed any positive portrayal of a gay lifestyle in public schools, according to the justices’ ruling.
Mair, in his editorial, compared her to historically racist and violent people.
“Now I’m not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really . . . neither did Hitler or Governor Wallace or [Orval Faubus] . . . they were simply declaring their hostility to a minority . . . Let the mob do as they wish,” he said, according to a transcript in the ruling.
The ruling sets a precedent by employing an “objective test” to grant fair comment. Beforehand, a majority of cases required the defence show four elements: that the comments were on matters of public interest; based on fact, clearly a comment of opinion, and the opinion expressed had to be the defendant’s own.
The ruling Friday, however, said that instead of having to prove the opinion of the defendant, if any person could “honestly express that opinion” based on the same facts, then fair comment is eligible.
