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Wednesday, December 17, 2008

Intellectual freedom in Canada: Moving toward a reasonable standard of evidence

From Tom Barrett in The Tyee we learn that journalists in Canada have won an important libel judgment:
The Nov. 28 decision in Grant vs. Torstar recognizes what is known as the "responsible journalism" defence in libel cases. The defence is a legal innovation that has been described as revolutionary in terms of how it allows journalists to report in the public interest.

The responsible journalism defence will be aired before the Supreme Court of Canada in February and it's possible the top court will reject it. But legal experts say the Grant vs. Torstar decision suggests the courts are moving in the direction of greater freedom of expression.

- "A Win Streak for Free Speech" (December 15, 2008 )
A key difficulty, Barrett notes, is that
One of the oddities about the common law that governs defamation in Canada is that the courts assume that comments that hurt an individual's reputation are false; it is up to the person who made the comments to prove they are true.

But proving that a controversial news article is true isn't always easy, Burnett notes.
Not easy? I should say it is often impossible.

Suppose, for example, the journalist is sued over an article describing the "incompetence" of a senior government employee. The employee sues and demands that the journalist prove that she is incompetent.

Well, in the article, it comes to light that the employee paralyzed her department for six months because she was unable to make a series of conventional decisions expected at her level. My guess is that the word "incompetent" would form silently in most readers' minds even if the writer had not used it.

But is that proof? I don't know? Does anyone? The reality is that decisions about such matters as whether an employee is competent are usually made according to an inference to the best explanation. Fair libel laws should reflect that fact.

Hat tip: Five Feet of Fury

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