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Wednesday, July 1, 1992

THE DISINGENUOUS HOWL - The Fantasy of Libel Chill

July 1, 1992,  The Idler

Canadian writers have been advertising Ontario as a welcoming forum for international figures wanting to bring a libel action. The claims they make are largely false. The two cases that have tested them, Bahamiam Premier Lyndon Pindling's action against NBC and sprinter Carl Lewis' action against Der Stern have lead to nothing. In truth Ontario libel law is perfectly unexceptional and unexceptionable. It is the whining about it that is egregious.

A mere handful of actions in the last couple of years provoked an outbreak of media concern and protest over an alleged libel chill in Canada. None of the actions had its merits passed on by a court. Protesters could not point to a politically or morally defensible publication that had proved legally indefensible. It was alleged nonetheless that libel law chills the ardour of the press for a free accounting of the conduct of public figures. No evidence of the chill was produced beyond the actions themselves. It was not defeat in court but the possibility of being sued that provoked. A group of "Writers to Reform the Libel Law", including defendants in three of the actions, produced a brief entitled A Dangerous Silence calling for major changes to the law. They wanted writers and publishers to have practical immunity from libel actions.

In the law of defamation the principles of free speech meet the rights of persons. Libel is the more important part of the law of defamation. It applies to written publications and broadcasts. Slander applies to mere talk. Defamation is any publication that causes a person, in the conventional phrase, to be held up to hatred, ridicule or contempt. The law of defamation does not protect persons' feelings but their reputations. There is no doubt that a libel can cause serious injury. Writers will not make light of the power of words.

Much of the controversy over the law of libel arises from a presumption of law that any defamatory publication is false. This presumption has lead to the protest that a defendant in a libel action is guilty until proven innocent. This is a false analogy with criminal law. It would be fairer to reverse the analogy and say that writers and publishers who want to put an onus on plaintiffs to prove that the defendant knew that a libel was false want a rule that anyone hauled before the court of public opinion by the media is guilty until proven innocent.

There is no unfair burden of proof in a libel action. The presumption that a libel is false is rebuttable. Truth is a complete defence. The burden of proof is only on the balance of probabilities, not beyond a reasonable doubt as in a criminal prosecution. That the onus is on the defendant to prove truth means only that where a jury is undecided on the evidence whether a libel is true it should find for the plaintiff on the presumption that it is false. Cases where the evidence will seem so evenly balanced and the onus matters are rare. A plaintiff who launched a libel action relying on the onus without strong evidence of his own to overcome any evidence the defence might lead would be ill advised. Conversely any writer or publisher wanting to defend a well researched article should plead truth and defend confidently. Where the presumption that a libel is false matters is in saving a plaintiff the burden of proving a negative, of disproving a libel published by a defendant who would rely on an effective presumption of truth under a law reformed to the taste of the chill lobby. What reformers want is to be able to publish with impunity libels they have no grounds for believing, so long as they neither actually know them to be false nor have some provable ulterior motive for attacking the plaintiff.

Truth is not the only defence. Apart from arguments about whether a publication refers to the plaintiff or means anything harmful, a defendant can plead fair comment on a matter of public interest. On this pleading part of an offensive publication can be defended not as true but as fair comment on facts that are true. Fair comment can be "in the most hostile spirit and in the severest terms" and may "denounce [a person] as unfit for his position for want of such qualities as wisdom, judgment, discretion or skill...".

The three defendants among the "Writers to Reform the Libel Law" were Elaine Dewar, the author of an article in Toronto Life that was the subject of an action brought by the Reichmanns and Olympia & York, Ron Graham, a passage in whose God's Dominion was the subject of an action by Conrad Black, and Heather Robertson, whose attack in Canadian Forum on Allan Gotlieb and his appointment as Chairman of the Canada Council was the subject of an action by Gotlieb against Robertson and the Ottawa Citizen, which reprinted the attack.

The suit against Robertson, implicating Canadian Forum, the traditional organ of the Canadian literary left, produced the sharpest reaction and lead directly to A Dangerous Silence which was published in the May 1991 Canadian Forum. Robertson herself did well out of the reaction. Gotlieb promptly dropped her from the suit. Far from chilling, the experience seemed to heat both Robertson and Canadian Forum, which persisted in attacking Gotlieb, adding the libel action itself as a further ground allegedly unfitting him for the Canada Council. Nor was there any reason why they should be chilled. Canadian Forum was never sued. Robertson, the author of several successful books, was perfectly capable of defending the action herself. In any event she did not have to as Southam Inc., the publisher of the Citizen, assumed the defence for both. Finally in May 1991 the Citizen published a circumspect "Editor's Note" clarifying the "intent" of its reprinting the attack and the action ended there.

A Dangerous Silence claims that under the libel law of Ontario, "it has become progressively more difficult....to bring forward new ideas, raise new issues, root in the past for the origin and meaning of current circumstances and for clues about the future."

There is no evidence of this. It is impossible that it could be so. The only material changes in the law in generations have favoured defendants. Reforms in the 1950's provided that a libel action should not succeed because a defendant could not prove the truth of all he said, if what he could not prove did not materially injure the plaintiff in light of what he could prove, and that whether comment was fair should be judged on the basis of what facts could be proved, excusing what could not be proved. The application of the law by a populous judiciary with little experience of libel actions has become progressively more lax and indulgent to defendants. Qualified privilege, which will excuse defendants from proving truth, has been confused with fair comment and extended.

The writers are confused and ignorant about the law. They complain that there is no definition of libel and that they "can't have any idea what might give rise to a lawsuit." There is no definition in the provincial Libel and Slander Acts, which make largely procedural changes to the common law for the protection of defendants. But the meaning of libel is well settled in common law. They make the preposterous claim that the law assumes "That there has been a libel or the plaintiff wouldn't have sued."

They claim that "well known" plaintiffs have a much better than even chance of success. Putting aside the obscure qualification "well known", this is surely as it should be. People who do not like what is said about them should not sue unless competently advised that they have a good chance of succeeding. But even at that plaintiffs' successes are hard to find. The Canadian Newspapers Association complacently reports year after year that most newspapers have no expenses for libel and only a handful have paid anything in settlements or had judgments against them. Much of the newspapers' legal expenses result from the big papers' efforts to change the law in the courts. They have had limited success in this because there is no need for change and little in the few cases they face to test the law.

A few apologies and retractions, more or less qualified, and a handful of modest settlements or judgments are little to show from a law allegedly biased towards plaintiffs. The writers themselves concede that judgments are modest but complain of the costs. They make a rather disingenuous argument that libel actions are too expensive for people of modest means. This may be true, but people of modest means are unlikely to have occasion to bring libel actions, not generally being exposed to attacks in the press or likely to be materially injured if they are. Conversely publishers who are unable to afford to defend a libel action are not worth suing.

The title of the brief is based on a contention that because defendants are advised not to comment on the subject of a libel action a dangerous silence ensues. What a defendant should say will depend on the particular defence he advances. If he is confident of the truth of what he published there is no reason why he should hide it. The contention flies in the face of the axiom that all potential plaintiffs must face: that suing is likely before the end to give more publicity to the libel. The pleadings and finally a trial can be freely reported.

The reforms the writers propose are anticlimactic. They want shorter notice periods and the proceedings speeded up. Plaintiffs are usually more keen than defendants to get on with an action. Potential plaintiffs have to be warned of the great delays in any action. Defendants' counsel might not want to be deprived of ways of dragging out proceedings and distracting and dispiriting plaintiffs, often at relatively modest cost. They want libel actions tried by a jury. But libel actions are already tried by juries, except when a defendant does not want it or in actions against the CBC, which benefits from an indefensible Crown privilege.

More importantly the writers want the plaintiff to have to prove "actual damages". This is the measure of damages applied in a case where a newspaper publishes a timely apology. It means that a plaintiff has to prove something like financial loss. As this is usually difficult to do, actions are usually not pursued after an apology. Where there is no apology damages are "at large" and juries are instructed to assume that there must have been some damage and to arrive at a reasonable assessment in all the circumstances. It is not an easy or predictable task but the risk of uncertainty is as much a problem for the plaintiff as for the defendant. As the writers concede, damage assessments are not extravagant. As the law has moved towards increasingly granting damages for intangible, not physical or financial, injuries, mental distress and violations of rights, it would be wrong to deny damages for injury to reputation however difficult they may be to assess precisely.

Newspapers have striven to insinuate a kind of responsible reporting defence. Under this it would be safe to report falsely that someone was a psychopath so long as the alleged psychopath was given an opportunity to respond. They have persuaded judges to accept professors of journalism as expert witnesses to testify that the reporting of an untrue story was fair. A judge accepting such testimony errs. It preempts the role of judge or jury in deciding the issues of law and fact. There is no subject or discipline of journalism in which there can be an expert. That it has happened shows how insecure the law is and the uncertainties that plaintiffs face.

The writers seem to want something like the law made up by the United States Supreme Court in New York Times v. Sullivan. This held that the first amendment protection of freedom of speech required in an action against a public official that the plaintiff should have to prove that the defendant published the libel knowing it to be false or reckless whether it was true or false. The rule has been elaborated in subsequent decisions to place the same burden on any public figure defamed by the media. As anyone who is the subject of a publication might be a public figure, by a rough circularity any possible plaintiff in the United States may now have to prove that the defendant knew what it published was untrue and thus have to prove his innocence and that the defendant knew it or did not care.

New York Times v. Sullivan arose in the heated atmosphere of the early sixties civil rights struggle and overturned an Alabama jury verdict in favour of Sullivan, the Montgomery Police Commissioner, for $500,000. For technical reasons having to do with the jurisdiction of the Supreme Court its reasoning may have been necessary to overturn the judgment. On the Ontario law of now and then, as the Supreme Court of Canada could finally state it without resort to the Charter, the judgment would have been overturned. The publication did not refer to Sullivan. The judge allowed the jury to confuse compensatory and punitive damages. What was false in the publication was arguably immaterial in relation to what was true. Some of the defendants did not even know their names would be attached to the publication. It is an unnecessary precedent for Canada.

In any event, despite New York Times v. Sullivan, and its elaboration, the American media do not feel free of libel chill. It is their phrase. Actions by William Westmoreland against CBS and Ariel Sharon against Time were fruitlessly pursued to much affected media dismay despite the great economic strength of the defendants. Libel insurance is more expensive in the United States than it is in Canada. The American situation confirms that what only can satisfy the chill lobby is complete immunity.

The Reichmanns' action against Toronto Life raised issues that had nothing to do with the actual law of libel. The Reichmanns' wealth grounded a concern that they could bear the enormous costs of the action themselves and impose insupportable costs on the defendants regardless of the merits.  The $102,000,000 they and their company claimed should not have been a concern. If they had been completely successful they would not have recovered more than a fraction of that amount. The article they complained of was 55,000 words long. Only specific passages were alleged to be libelous, but the whole family history and Dewar's research in New York and Hungary and Vienna and Israel and Montreal and Tangier were evidently to be recapitulated in pretrial proceedings and at a trial. If Toronto Life and Dewar had succeeded at a trial they would have recovered enormous costs from the plaintiffs. The complaint was that Toronto Life could not have borne the costs that long. The action was seen as a kind of litigious terrorism in which the plaintiffs threatened to kill Toronto Life. But the Reichmanns would have injured their reputations more by killing Toronto Life than by letting pass Dewar's interminable account of her far flung researches and their exiguous and ambiguous results, which, however many might have bought her planned book, few would have read and fewer still have drawn any damaging imputations from.

The ability of the rich to pursue actions without regard for the costs or the likely recovery is a notional problem in any area of the law. The only and unacceptable remedies are to bar the rich from the courts or openhanded subsidy of defendants. The use of wealth to crush a libel defendant cannot protect a reputation. Libel actions of the rich are too much reported and with too much sympathy for the defendants.

The Reichmanns in their statement of claim did not simply rely on the presumption the writers find so chilling. It asserted an obligation on the defendants "to carry out a proper investigation" and alleged they ignored "readily ascertainable facts". It positively asserted the plaintiffs' "excellent and 'accepted'[sic] reputations". They appeared ready to do battle with the defendants on some of the ground the press would choose in its responsible reporting defence.

In the end Toronto Life and Dewar published a very full retraction and apology and made substantial donations to charity at the Reichmanns' request. The magazine survives in hard times. Slimming and layoffs result from declining advertising in the posh markets to which it appeals. The financial press has shown no inhibitions, rather the reverse, in reporting and speculating on Olympia & York's much greater financial difficulties. The Reichmanns' family history retains an air of mystery, but it was one Toronto Life and Dewar seemed unlikely to dispel. A curious passage in the apology says "we intended to and believed we had thoroughly dismissed all [allegations and insinuations about the Reichmann family] as we felt there was no reasonable basis for them. We now realise that we did not." It was always difficult to see what exactly they were driving at and consequently what the Reichmanns were complaining about. These obscurities added to the expense and risk for both sides.

Conrad Black's action against Ron Graham and McClelland & Stewart is only one of several he has brought, attracting a large share of the libel chill protest and a demonstration outside his Toronto Street offices. He has never carried an action to trial, generally settling for retractions, including a memorably precise and fulsome one from the Globe & Mail. He took a rather flat apology from Graham and McClelland & Stewart in an open letter published in the Globe. They regretted their ambiguity.

The treatment Black receives in the Canadian media shows no signs of gelid deference. It may be wondered whether his resort to the law of libel has done his reputation much good. There is no ground for thinking that he has succeeded in suppressing any truths. He did not frighten Ron Graham or McClelland & Stewart, who published after he had shown his readiness to sue. But Graham by his association with the "Writers to Reform the Libel Law" has already joined in the simple complaint that writers should not have to worry about the libel law at all. Commenting on the painless disposition of Black's action he said he would not write on Black until the Ontario libel law is changed and pronounced: "The chill is still on." Graham's comments show how the chill is largely self-induced and the alarm self-fulfilling.

The self-fulfilling alarm reached a preposterous extreme early in the year when Macmillan Canada announced it would not publish a book on Edward and Peter Bronfman's tangle of companies after receiving a letter from one of them claiming that portions of the manuscript, unseen by Macmillan, might be actionable. The author, Globe & Mail reporter Kimberly Noble, had already written a series of articles for the Report on Business. The Bronfman companies criticised the articles but took no action. The articles and the book required the careful analysis of complex financial structures. Securities markets have lacked enthusiasm for the Bronfman companies because of the complexity of their finances. There is no interest in writing about them that does not get the facts right. There is no reason to think that Noble's book does not. There is no reason to think therefore that it would expose her or Macmillan to liability for libel.

Macmillan's immediate and public capitulation to the Bronfman's produced what can only have been the intended reaction. PEN Canada president John Ralston Saul gloated over a "classic case of libel chill". Ludicrously, Noble's agent praised Macmillan's "bravery" in exposing the impact of libel chill.

After the incident had been fully exploited Macmillan said it would read the manuscript after all and possibly publish it in the fall. Macmillan will not have to worry about a libel action. It will have to decide whether sales of a book that can only interest and be understood by a few thousand Canadians will be sufficient after the free publicity to support the costs of publication.

The situation in Canada presents a marked contrast with that in England. The writers claim that Ontario suffers under a specially oppressive libel law and has become a haven for litigious public figures. But the Ontario law is essentially the same as that in England and the other common law jurisdictions in the Commonwealth. The operation of the law and its effects are very different.

In Canada judgments for libel are few and modest. In England they are many and often enormous. There were several awards in six figures in pounds in the 1980's. The writers made frantic by Allan Gotlieb's action against Heather Robertson should be thankful they do not face the awful example of Nikolai Tolstoy who was ordered to pay £1,500,000 to Lord Aldington for calling him a war criminal for his role in the postwar repatriation of Cossacks and Yugoslavs. The different operation of the law seems to result from a combination of better understanding of the law by a more concentrated judiciary and bar and the willingness of juries - it is always juries in England - to treat libel seriously and make defendants pay.

But despite an operation of the law that Canadian writers would consider ice age the effect is not at all what they argue it must be. English writers are far more outspoken than Canadian writers. Auberon Waugh, though an unsuccessful defendant in libel actions himself, has not hesitated to call one Conservative minister a pedophile and another an obvious madwoman. Private Eye, the remote inspiration of Frank, despite several libel actions, published more good dirt in an issue than Frank has managed to come up with in years of digging. The most typical product of Canadian journalism is the admiring profile. It was not libel chill that led Toronto Life to run an admiring profile of Patti Starr just months before her name became synonymous with scandal in Ontario politics.

In fact, from carelessness rather than vigour, libels regularly appear in the Canadian media. They are not pursued because their victims do not notice them or do not wish to draw attention to them, because they are true, because politics makes it inadvisable to sue and finally because the burden on a plaintiff, the uncertainty and delay and cost, is too much to bear.

The chill lobby implies there is no burden on a plaintiff, who can simply sit back and rely on legal presumptions until a grovelling apology or a handsome judgment arrives. But the plaintiff generally bears the greater expense and faces the inevitable publicity given to the libel through dispiriting delays and uncertainty in the outcome. His whole reputation and life may go on trial despite principles that should restrict the proceedings to the precise libel complained of. In the most famous Canadian libel trial, Sir Arthur Currie sued a Port Hope newspaper for a gross libel alleging he had wasted the lives of troops under his command in a vainglorious attack on Mons on the last day of World War I. He won. But the strain was such that he collapsed on learning there was to be an appeal, which he was rightly advised had no hope of success, and never fully recovered.

Much of the trouble writers have with the libel law results from a vanity that prevents them from admitting when they are wrong. When they have confidence in their story they should plead truth or fair comment and take their case to a jury, looking forward to a courtroom triumph. When they lack that confidence they should proffer a prompt and fair apology and retraction. In the cases of periodical or broadcast libel, and largely with any libel, an apology and retraction faces the plaintiff with the burden of proving actual damages. As after an apology this is difficult to do, the plaintiff will usually drop the case. The defendant has been put to nominal expense. As an apology and retraction is usually insufficient to remove entirely the damaging imputations of a libel the defendant can console himself with the thought that if there was anything to his story after all, which he may still believe, the seed remains from which the truth may finally sprout.

In the heat of protest it is never allowed whether the outraged defendants believe they cannot successfully defend what they said or object simply to being put to the trouble and expense of doing so. Reading A Dangerous Silence it seems that the writers have received alarmist or overcautious advice. But finally what the writers want is a risk free occupation with no enforceable responsibility. No other profession has this. Doctors, lawyers and engineers are all subject to lawsuits and the press is only keen that they should be held to higher standards. Writers should leave their whining and accept the just risks of their profession. A free press is a necessity. But it will be better if it is a press willing to take responsibility for the injuries it may cause.