corbett guilty until proven innocent the tort of defamation

| by James Corbett
| `BoilingFrogsPost.com `__
| May 20, 2014

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
unofficial parallel court system that begins to take over his entire
life. This is the essence of the Kafkaesque.

Although often read as an existential critique of modern life, as the
unlucky few who are put through the courts can often attest, the
Kafkaesque is alive and well in the common law courts of the supposedly
civilized western world. One of the clearest examples of this phenomenon
can be found in the courts of Canada, the UK, and similar jurisdictions
over the tort of defamation.

As `Professor Denis
Rancourt `__
of `UofOWatch `__ explains, defamation
laws are an historical relic of the age of nobility and reflect an exact
inversion of the core tenet of western jurisprudence, that a defendant
is innocent until proven guilty.

As Rancourt goes on to point out, defamation laws retain their
historical roots by remaining almost exclusively the tool of the rich
and powerful to squelch criticism by the poor and powerless.

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 is particularly
egregious.

In 2001, Connie and Mark Fournier founded
`FreeDominion.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
Warman, a human rights lawyer, was awarded $127,000 in damages and legal
expenses for comments that were posted to the website by anonymous forum
users. Despite having deleted the comments from the website in 2009, the
Ontario Superior Court ruled in Warman’s favour, 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.

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 comment section on `the
article `__.
In an environment when anyone, anywhere can leave any comment on a blog
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 83, 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 judge’s personal opinion of whether the
case has “public interest” and thus further perpetuating the fundamental
problem of power disparities and the arbitrary nature of defamation
itself. As the OCLA concludes, no 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, its pernicious
impact on freedom of expression and its deleterious impact on our
society.”

Until such an examination takes place, the sad fact is that 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.