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Title: Defamation on Trial: Why the tort of defamation must be abolished
Published: 2014-05-21
Source: https://www.youtube.com/watch?v=w5zU63u14ko
Title: Defamation on Trial: Why the tort of defamation must be abolished
Published: 2014-05-21
Source: https://www.youtube.com/watch?v=w5zU63u14ko
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hello friends james corbett here corbettreport.com and before we get into today's i open a report I want to direct your attention to the front page of boiling frogs post calm where you will find that the second quarter quarterly fundraising drive is now underway with the goal of raising 12,000 dollars to help support boiling frogs post operations which not only includes the eye-opener report but of course2/30
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so let's get straight into today's eyeopener report early 20th century writer Franz Kafka was known for creating unsettling stories of characters set upon by unseen forces caught in the labyrinth of modern-day bureaucracy a lawyer by training this sense of angst is perhaps best exemplified in his famous novel the trial in which a man is charged with an unnamed transgression by an unknown accuser in an unofficial10/30
parallel court system that begins to take over his entire life this is the essence of the cafe esque although often read as an existential critique of modern life as the unlucky few who are put through the courts can often a test the CAF gay esque is alive and well in the common law courts of the supposedly civilized Western world one of the clearest examples of this11/30
phenomenon can be found in the courts of Canada the UK and similar jurisdictions over the tort of defamation as Professor denier encore of view of a watch explains defamation laws are in historical relic of the age of nobility and reflect an exact inversion of the core tenant of Western jurisprudence that a defendant is innocent until proven guilty it is a set of laws that dates back12/30
to times when Nobles would chase people who criticize them and it was part of the criminal code in in the UK at the time you will have heard historically of the chart the Star Chamber and that is where that is where these cases were brought and so you a nobleman could say well I was defamed this this person published libelous materials about me and they could13/30
be sent to horrible well to jail basically and so on and find large amounts of money just just in a very very direct way that's the origin of defamation law under the common law regime and it has survived most of its features it's undemocratic features and it's unjust features have survived to this day so for example it is the only cause of action it's the only14/30
tort in law that presumes malice on the part of the person you're against it presumes malice of defamation it presumes false falsity of what the person said and it presumes that there has been damaged of the reputation there is no need to prove damaged falsity or malice they're all presumed so you are guilty until you prove yourself through some defense and the defense's that are allowed15/30
are very constrained and very limited and defined in law through the common law so there's only very specific defenses if you don't fit into one of those defenses and if you cannot argue that you're entitled to that defense you're done you're guilty it's the only tort that's like that it needs to be abolished for that reason alone as a runcore goes on to point out defamation16/30
laws retain their historical roots by remaining almost exclusively the tool of the rich and powerful to squelch criticism by the poor and powerless over all the courts are a major instrument of power in society they are tied to the system of enforcement the police they're tied to normalizing behavior at all levels from Children and Families all the way up to you know small businesses and so17/30
on and they enforce and deal with banking regulations the corporate world and so on so it's all of that it's a major system and defamation law is always a tool that anyone in any of these circumstances can try to use course if you're if you are a single mother and you've been defamed and as a result you can't get a job defamation law is not going18/30
to help you in any way you know the case is where it could help people because of an asymmetry of power for example a boss spreads a rumor that the former employee is not reliable well you know you're not going to be hired in that town anymore that is slander and that is vicious and that has huge repercussions but try to find a case where and19/30
if a former employee has succeeded in using defamation law to his for his protection in that way you're not going to find one and if you are it'll be the exception that proves the rule sadly specific examples of exactly how this law is used to silence political discussion of all stripes are by no means difficult to find a recent example in the Canadian political context is20/30
particularly egregious in 2001 Connie and Mark Fournier founded free dominion CA as a forum for Canadians to discuss political issues in January of this year the forum was shuttered after 13 years of operation when Richard warmin a human rights lawyer was awarded 127 thousand dollars in damages and legal expenses for comments that were posted to the website by anonymous forum users despite having deleted the Comets21/30
from the website in 2009 the ontario superior court ruled in wormans favor barring free dominion from ever repeating any of the defamatory comments in any manner whatsoever and effectively censoring the website from the face of the Internet we found when we got into court that to try to defend ourselves using the fair comment defense for comments made for by other people was impossible because you have22/30
to be able to point to the facts that were relied on and show that true facts were the basis for the comments and you have to be able to prove that there was no malice in the making of the comments and obviously when you're you're talking about the words of another person you you can't do that we we weren't allowed to even say well obviously this23/30
person was talking about this particular fact that had come up earlier in the thread because that that was just it wasn't something that was within our knowledge so so as far as fair comment land we it was out the window when it came to those comments made by other people again that's I mean that's head scratching and appalling for so many reasons I mean to think24/30
that that in essence this goes back to I think something we were talking with a denier encore about is that you are in effect really guilty until you can prove your innocence and in this case it's impossible because you have no access to the thought process of the person who posted these comments on your website exactly and that's it really applies to the the injunction as25/30
well is and the reason that we had to shut the website down is because if somebody anonymously came in now and wrote something similar to what had been written in one of these comments about Richard warmin we would be held responsible and so even if we thought five minutes later and deleted it but he had a screenshot of it he could still go to the court26/30
and and ask them to to file contempt of court charges against us the chilling effect of this ruling in particular and similar rulings in general is palpable in the Canadian blogosphere even the Ottawa Citizen the only major Canadian media entity to report on the case chose to close the comments section on the article in an environment when anyone anywhere can leave any comment on a blog27/30
that even if removed within minutes can still be used to successfully prosecute the webmaster the hosting provider the service provider or anyone else even remotely related to the publication of that comment for defamation no possibility of free speech or public political debate can exist there are efforts to reform the system as it exists in a number of jurisdictions in Ontario in particular there is Bill 8328/30
an act to amend the existing slander legislation ostensibly to foster free expression and discourage the use of litigation in stifling criticism as the Ontario Civil Liberties Association points out in a position paper on the bill however bill 83 would not address the root issue leaving the dismissal of defamation lawsuits to the judges personal opinion of whether the case has public interest and thus further perpetuating the29/30
fundamental problem of power disparities and the arbitrary nature of defamation itself as the OC la concludes real progress will be made on the subject unless the current interest in bill 83 is instead used to conduct a thorough public examination of defamation law it's pernicious impact on freedom of expression and its deleterious impact on our society until such an examination takes place the sad fact is that30/30
the court system will remain a tool of oppression for the powerful against the powerless the likes of which not even Kafka could have imagined this video is brought to you by the subscribers of boiling frogs post calm for more information on this and other topics please go to boiling frogs post calm for more information and commentary from james corbett please go to corbett report com
