November 6, 2003  
Volume 97, Issue 38  

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Why libel law needs adjustment

Thrust n' Perry
Dan Perry

News Editor

In the news business, one code holds true: guilty until proven innocent.

Though libel suits contain trials in which the accused (i.e. the news outlet) is presumed innocent, the accused libeller is left in the difficult position of bearing the burden of proof.

In a regular criminal trial the burden of proof rests on the prosecution's shoulders - in a murder trial, for example, the prosecutor must prove the defendant guilty by providing evidence and building a narrative placing the defendant at the scene of a crime.

In the case of libel, however, the plaintiff is privileged; it's up to the news outlet to use one of the available defenses - truth of the claim, fair comment, consent or privilege - to prove it had a right to print the "libellous" comment.

When a "libellous" comment is made, a notice of libel must be served within six months of the claim and when this notice arrives, it often requests a printed retraction as a first alternative to taking the case to court.

And then it gets ugly.

The cost of legal defenses against magnates like the much put-upon Conrad Black are insurmountable for any newspaper not owned by him. The small newspaper must pay a lawyer to do all the research and put together a case, whereas the plaintiff has no responsibility but to argue his or her case well. Even before going to court, the cost could already be in the thousands.

So what do most newspapers do? Instead of contesting suits a paper knows it can win, it takes the more cost-effective route of printing a retraction - even if they reported the truth.

What does this say about freedom of speech in the Canadian media? If nothing else, it says any newspaper that exposes someone as corrupt, with adequate evidence, had better be rich.

In the Canadian newspaper industry, of course, that narrows the field to a small number of papers; and logically, no one will take on the big papers, who have access to some of the higher-end, more expensive and more skilled lawyers.

Essentially, the message Canadian libel law sends is this: the richest, corporate newspapers are responsible for maintaining freedom of speech from the protective bubble of wealth. Smaller papers, despite pushing perhaps for an alternative viewpoint or some credibility in our society's media glut, are reduced to being economically coerced out of telling the truth.

The true advancement of freedom of speech requires libel law to be reversed, leaving the plaintiff to prove claims aren't true; the newspapers who lied would be called to account and better yet, tell the truth in future columns and retractions alike.



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