Thursday, April 22, 2010

The Weaver case - climate change, defamation and the internet

Hat tip to Neil Whitfield's Google Reader for this one.

In desmogblog.com Richard Littlemore reports, Climate Scientist Sues National Post, on a defamation case brought by Canadian climate scientist Dr Andrew Weaver against the National Post newspaper and its publisher, editors and three writer: Terence Corcoran, Peter Foster and Kevin Libin. The report includes a link to the statement of claim lodged by Dr Weaver.

Just to summarise a few key points as I understand them:
  1. The National Post appears to be published in Ontario. The case was lodged in British Columbia where Dr Weaver lives on the basis that the on-line material was available in BC.
  2. Dr Weaver alleges that the National Post, its writers and intenet commentators defamed him over his views on climate change. 
  3. In addition to damages, Dr Weaver is asking for a Court order requiring the newspaper to help track down and remove defamatory material. Part of his argument here is that the paper via things such as Digg and its article email facility created a channel that allowed the viral spread of the defamatory material.
Do read the statement of claim. Certainly some of the material would appear to fall in the playing the man rather than ball class, while other material would be classified in Australia as fair comment within the rough and tumble of debate. However, the overall pattern will be familiar to any one with exposure to the internet.

A few comments on the case:
  1. As I think has now been established in Australian law, just because you are domiciled in one location does not prevent action being taken against you in a different jurisdiction if you are using what is in effect a global platform.
  2. If one of your commentators defames someone, then you may be responsible.
  3. If, and this is I think the really new element raised by the case, you consciously create channels to facilitate the distribution of your material, then you may be liable for that distribution.
In a practical sense, most regular bloggers are pretty conscious of the need for care. It's not really a question of law, but of equity, manners and common sense. I am not sure, however, that the same can be said of some of the intrusions into the on-line world by the main stream media where what we call in Australia the shock jock component is more obvious.

I must say that I would be interested in informed comment on the case from some of our legal blogging friends such as marcellous or skepticslaywer.

Postscript: 

A helpful comment from Mark Francis led me to another Canadian case, the link libel case.

A former Green Party Campaign Manager Wayne Crooks argued that when a Canadian website posted links to two US websites that featured defamatory statements it was the same as publishing defamatory material itself.

In 2008, a British Columbia judge dismissed the lawsuit, saying the links were like a footnote or a reference to a website in a newsletter. Now Mr Crooks has been given leave to appeal to the Supreme Court.


Another interesting case to watch.

6 comments:

Legal Eagle said...

oooh, interesting - I shall cogitate, Jim!

Jim Belshaw said...

Thanks, LE. I thought that it was an interesting case.

Mark Francis said...

The National Post is distributed nationally, and is widely available online. You can absolutely file a lawsuit in BC over a company located in another province. Indeed, you have to file in a jurisdiction you have an interest in, else your suit will be disregarded.

With libel, the only issue is that the jurisdiction you file in must have had the material published there. The National Post could never credibly claim to not have a BC audience, so Weaver is fine to file this way. Very normal practice.

The argument by Weaver is that actions and words are being attributed to him which he claims he did not do and did not say. This is what we call 'false fact' and, being defamatory, is a strong basis for an argument of libel.

Jim Belshaw said...

Thanks for this additional background, Mark.Its always an issue commenting from one country on developments in another.

Checking your blog, I saw a reference to the link libel case. I will bring this up as a postscript on the post.

bobq said...

One interesting thing that is NOT in Weaver's statement of claim is a John Doe suit against the writers of comments attached to the articles. I do wonder how long it will be before someone, somewhere takes sufficient umbrage to try that on as well, requiring the publisher to identify and provide the identity of the offending comment.

Jim Belshaw said...

Hi Bob. If my memory serves me correctly, we already have cases in this area in Australia and/or the UK. I think that it has arisen in the business arena, but I cannot for the life of me remember the details.