Sticks and Stones: Libel Tourism and Free Speech

"Sticks and stones may break my bones, but words will never hurt me."-Anonymous (idiom, but probably the words of the first kid ever picked on in a playground)

A recent post by John Gregory (General Counsel, Policy Division Ministry of the Attorney General (Ontario)  over at slaw.ca entitled "Privacy and Defamation"
 discusses defamation law reform in Britain and quotes Sir Alan Beith, MP (UK):

““It won’t be possible to reform the law of defamation without ensuring there is some protection for privacy. You can’t wholly separate them.” Sir Alan Beith, MP (UK). Story here."

Gregory continues with the following insight,

"Sir Alan was likely thinking (I had never heard of the man until this morning, so I have no special access to his mind…) that reform would move in the direction of narrowing liability, i.e. permitting more things to be published about people than the current law of defamation would allow (without liability). The ‘chill’ of libel law would be reduced. This is generally considered a good thing for freedom of expression, democratic debate, the people’s right to know, and so on.
However, that kind of reform exposes people to greater harm to their reputations. After all, as Nicholas Bohm pointed out, defamation is about unwelcome untruths. (Part of the chill of libel law comes from the difficulty of proving the truth of true statements, mind you, and reform often excuses publication of material that cannot be proved to be true but that still may be true.)
It may help balance people’s feelings of increased exposure to attacks on their reputation in the public interest if they have greater means of protecting exposure of ‘unwelcome truths’ where there is no legitimate public interest in those truths.
So: reform defamation law to increase the availability of public interest information but reform (create) privacy law to decrease the availability of private interest information. They go hand in hand, both logically and as a marketing strategy.
Does that make sense?"

The answer is....yes, no and maybe.

Erik S. Knutsen on "The Cost of Costs: The Unfortunate Deterrence of Everyday Civil Litigation"

Erik S. Knutsen (Queen's University Faculty of Law) doesn't like costs. Specifically, he doesn't much care for Canada's "loser pays" costs regime in civil litigation. In his article, "The Cost of Costs: The Unfortunate Deterrence of Everyday Civil Litigation in Canada" Queen's Law Journal, forthcoming (available on SSRN) Professor Knutsen proposes a "two-track" costs regime to address perceived unpredictability and unfairness in fee-shifting impacting both plaintiffs and defendants. It is a lengthy article but well worth reading. Here is the abstract:

Kate Sutherland on "Book Reviews, the Common Law Tort of Defamation, and the Suppression of Scholarly Debate"

Kate Sutherland (York University - Osgoode Hall Law School) has a new SSRN post entitled: "Book Reviews, the Common Law Tort of Defamation, and the Suppression of Scholarly Debate", German Law Journal, Vol. 11, No. 6, pp. 656-670, 2010. Here's the abstract:

Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.

"Litigation or Arbitration? The Prospects for Adjudicating International Human Rights Claims in Canada"

An updated version of my article "Litigation or Arbitration?: The Prospects for Adjudicating International Human Rights Claims In Canada" (presented at the WIRP Law Conference earlier this year) is available in pdf here.  Here is the abstract:

This paper will briefly explore the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada from the perspective of the differing judicial approaches to the enforceability of forum selection and arbitration clauses,on the one hand, and divergent jurisprudential views on assuming or declining jurisdiction, on the other.  

Recent Supreme Court of Canada pronouncements reflect a Rawlsian view of contractualism: that morality (and, therefore, public policy) is based on social contract or agreement. Each statement identifies the continuing jurisprudential debate over the nature and scope of a court’s jurisdiction ratione materiae and the judicial role in reviewing private contractual disputes submitted to consensual arbitration. It also highlights the tension between promoting the primacy of party autonomy and contractual freedom, on the one hand, and defining the limits to judicial intervention of matters involving the “public order” or public interest, on the other. Essentially, it addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest. 

Unless the Canadian federal State Immunity Act is amended to create a general “torture” or “human rights abuse” exception, or Canadian federal legislation akin to the U.S. Alien Tort Statute, is enacted, the only viable procedural route is to attempt to enforce a foreign arbitral award obtained against a state based upon commercial activity and rely upon the “forum of necessity” exception to the reformulated “real and substantial connection” test in Van Breda. This will, of necessity, include concurrent claims framed in contract and tort, as well as claims imposing liability against Canadian corporations “aiding and abetting” the alleged torture or human rights violations committed in the host state’s territory and falling within the ambit of acts committed by individuals acting in an official capacity.Only time will tell whether the winds of political change or judicial activism will finally hold sway and allow victims of human rights abuses and torture equal access to Canadian justice.

 Comments and critiques are welcome.

Work/Life Balance? Enough is Enough

Enough is enough.

From today's ABA Law Journal story: How Gen X Lawyers Can Bridge the Gap, Foster Work-Life Balance:

"The 30- and 40-year-olds who make up Generation X have an important new role in molding the younger Gen Y workers whose brush with the recession has turned them into Generation Comply.

That’s the assertion of Miami Herald columnist Cindy Krischer Goodman, who says Gen X supervisors can help bridge the gap between younger workers who grew up in a world where technology brought flexibility to work and the older Baby Boomers who require face time and sacrifices."

 At some point, you have to decide whether to cross the bridge or to burn it down.

As ScottGreenfield just twitted a moment ago:

BrianTannebaum, wryly adds,

JayFleischman also fondly remembers the early 90's:

Want to know more? Read Stephanie West Allen's "What Is It About 20-Somethings?" where she also cites Scott Greenfield's post on this weekend's New York Times Magazine article "Why are so many people in their 20s taking so long to grow up?" You may also learn something after reading Brian Tannebaum's post, "How's Your Practice?".
 
 I have practiced law nearly 18 years. During this time, like many Baby Boomer and Gen-X lawyers,  I have witnessed economic recessions, including the most recent global recession starting in 2008.  I have lived through the late 80's real estate market crash and late 90's Dot-com bubble burst.

On The Recent Withdrawal of Rape Charges Against Julian Assange of WikiLeaks

Many will have heard about Julian Assange, the intrepid founder of the whistleblower website, http://wikileaks.org, responsible for the recent release of nearly 77,000 leaked US military documents about the war in Afghanistan. It's no surprise that the US government wants to stop Assange and shut down WilikLeaks: U.S. Federal prosecutors believe the disclosure of the highly classified military documents is "illegal" and they are currently exploring possible criminal charges. Good luck to the Pentagon lawyers in crafting a way to extend the long arm of the law to Assange or WikiLeaks, who are neither  resident nor conduct business in the United States of America and don't plan on doing so anytime soon.

Mr. Assange has also been a trending topic on major media outlets and social media platforms, such as Twitter and Facebook, for a less noble reason (unless, of course, you consider WikiLeaks to be a threat to the "War on Terror"). The "breaking news "making the rounds concerns a story reported by a Swedish "tabloid", Expressen, that Swedish police had issued an arrest warrant against Mr. Assange arising from complaints by two unidentified Swedish women alleging they were raped and molested by Mr. Assange.

In this brave new digital age of viral global communication and social media reporting, as soon as the story broke, there were those quick to jump on the bandwagon, adopting the adage "bad news travels fast." Fortunately for Mr. Assange, as reported today by the National Post (via Reuters, with files from Agence France-Presse):

"Swedish prosecutors said on Saturday that the founder of controversial whistleblower website WikiLeaks, Julian Assange, was not suspected of rape in Sweden and was no longer wanted for questioning.

“Chief prosecutor Eva Finne has come to the decision that Julian Assange is not suspected of rape,” said a statement on the prosecution service’s website.
Mr. Assange was “no longer wanted,” the statement said, adding that Finne would make no other comments on Saturday."

 While WikiLeaks is at the forefront of exposing government cover-ups, duplicity and corruption, it seems its founder, Mr. Assange, is biding his time and ruminating on how to respond to this recent turn of events. At the time of this posting, he has yet to respond on Twitter  or on the wikileaks.org blog. The last blog entry reads:

"On Saturday 21st of August, we have been made aware of rape allegations made against Julian Assange, founder of this project and one of our spokespeople.
We are deeply concerned about the seriousness of these allegations. We the people behind WikiLeaks think highly of Julian and and he has our full support.
While Julian is focusing on his defenses and clearing his name, WikiLeaks will be continuing its regular operations."

The XVIIIth International Congress of Comparative Law: Dedek and Carbone on "The Complexity of Transnational Law"

 American University Washington College of Law-George Washington University Law School-Georgetown University Law Center recently hosted The XVIIIth International Congress of Comparative Law / Le XVIIIe Congrès International de droit comparé (under the auspices of L'Academie Internationale de droit compare/International Academy of Comparative Law & the American Society of Comparative Law). The Congress website contains downloadable pdfs of General and National Reports, on a wide array of comparative law topics prepared by internationally renowned scholars. 

The Canada Report entitled "The Complexity of Transnational Law" by Prof. Helge Dedek (Pan-Canadian National Reporter- Assistant Professor of Law, Faculty of Law, McGill University) with Alexandra Carbone, (Student-at-Law, Oslers LLP) will be of particular interest to Canadian comparative law scholars, practitioners and judges. Here is an excerpt:

"Unsurprisingly, the discourse on the fragmentation and complexity of transnational law is fragmented itself; indeed, the complexity of transnational law is the focal point of many different discourses that partly overlap and intertwine. In addition to the law and social science discourse on transnational law, there is a less interdisciplinary, one might say, more traditionally “legal” discourse in legal academia that tries to capture the phenomenon of globalized law in the terms of a legal “system” or “order” that has expanded beyond the  nation-states.Furthermore, there is, of course, the discourse of the practitioners of state law: lawyers and judges who have to cope with the phenomenon of transnationality while working within the institutional framework of the exercise of state power. While theoretical pluralism tells us to let go of the traditional preoccupation with state law, the participants of the actual state law discourse, those involved in the official machinery of “lawyer’s law”, have to reconcile such transnational influx with the task of upholding and enforcing state law; non-state “law” in the pluralist sense has to be translated back into the language of “law” understood as the order posited (or at least: endorsed) by the sovereign, represented by the judge.

As these systems of national and transnational legality collide, the comparatist reenters the scene. Is it not to be expected that the reaction to the challenge transnational law poses to “traditional”, state-based conceptualization of law and administration of justice, to ideas of legal pluralism, varies according to the respective institutional framework, but also according to more elusive factors such as tradition and legal culture? It will be our task to describe the response this particular aspect of the transnational challenge, the complexity of transnational law, has met in Canada, in Quebec and the common law provinces, taking into account the varieties of discourses, which are fragmented (one might say: horizontally) according to the degree of theoretical abstraction and (one might say: vertically) along substantive sectoral lines.

We will divide our inquiry into two major sections. We will first set out on a quest to find a trace of a specifically Canadian “legal culture” in response to the challenge such global legal pluralism poses to national legal discourse (Part B). In doing so, we will, firstly, outline the reactions to the complexity of transnational law in academia and legal education. Then, we shall proceed to the responses of the judiciary; we will give some examples of what we think of as a general “pluralist” tendency among Canadian judges, indicative of a willingness to embrace complexity as part of a societal and legal reality.

In the second major part of our inquiry (Part C), however, we will turn to the technical complexity of transnational law as a matter of legal “craftsmanship”. We will first outline the intricacies involved in the process of implementation of international instruments in Canadian law, which in the past has been a source of insecurity for judges in regard to which laws they are supposed to apply. Finally, we will discuss in more detail the problematic repercussions of the technical complexification of law in core areas of private law, focusing on what might be called the “plight” of the United Nations Convention on Contracts for the International Sale of Goods10 (hereinafter CISG or “the Convention”) in Canada."