Defamation law for bloggers: Don’t be in a rush

I like to read reference works on defamation and publish important points from them – with comments, of course. My purpose is to provide a point of entry you could search for if you need to know details about the basic facts of defamation law. I’m not writing how-to guides; I’m excerpting from the basic texts of the field to explain difficult concepts like malice and issues like balance in reporting and right of reply.

J-Source published a compendium article on a few noteworthy cases, but left out a case with the biggest single lessons for any online publisher, including bloggers: Vigna v. Levant, 2010 ONSC 6308. The case is important because it sets out two important facts:

1. Rushing to publish a statement in the absence of urgency can contribute to a finding of defamation.

2. Very simple ways of contacting a source can satisfy the responsible-journalism requirement.

I take issue with the latter, but let’s start at the beginning. As the judge put it (some elisions):

Giacomo Vigna, a lawyer for the Canadian Human Rights Commission, has sued Ezra Levant for libel based on several allegedly defamatory statements published on his internet website blog.

(Presumably his online “internet website blog.”)

Giacomo Vigna won the case. Ezra Levant was found to have published defamatory statements. Not all the attested statements were ruled defamatory. (In a case like this, losing on any count is as bad as losing on all counts, I feel.)

Urgency

The court found that Levant rushed to publish his defamatory statements even though there was no rush.

The matter was not urgent, as Levant was writing his blog in March of 2008 almost a year (11 months) after [a relevant event happened] on May 11, 2007….

The Barreau du Québec had also dismissed a claim by Lemire that Vigna had breached the Code of Ethics on November 22, 2007. As a result, I find there was no urgency to publish the defamatory communications in this case and that a diligent effort to verify the truth of the allegation should have been made by Levant before publishing the defamatory statements.

On the topic of another of Levant’s statements:

Levant’s statement… is a statement of fact and not one of opinion, and therefore the defence of fair comment does not apply. I find that Levant should have made inquiries from the Commission and contacted Vigna to confirm… before publishing these statements. The public interest in this matter is minimal and there was no urgency to the matter.

Interpretation

I view this as a significant ruling that should serve as a warning to anyone running an “Internet Web site blog” in Canada. If you intend to write something that could be remotely construed as defamatory, you absolutely must not rush to do it. By implication, there has to be an “urgent” real-world event that would force you to publish early. Self-publishers have no deadlines, so a deadline will not suffice as an “urgent” event because it does not exist.

If you work for a newspaper or other news organization, I interpret this to mean that your paper’s deadlines and news hole are irrelevant. No matter how much you or your editor would like you to file by deadline, if you haven’t covered all your bases you absolutely must not rush it.

I think a legitimate case of urgency might be described in this hypothetical example: Only two companies submit bids for an important public tender. A journalist finds evidence that one of the companies bribed or illegally lobbied the government, which is set to award the tender on a certain date. It would seem that publishing before that date is a legitimate goal. If you contact the company (repeatedly, let’s say) but still don’t get a comment, you can publish anyway. “Urgent,” in this example, means “there exists a moment beyond which irrevocable damage could occur if the statements aren’t published.” But that’s just a thought experiment.

All this will be bitter medicine for a lot of writers, who are accustomed to banging out copy all day and at whim (and, at farms like Gawker and HuffPo, have contractual quotas to meet). The ruling butts up against the unspoken demand to publish first or publish fast. It might just be a voice in the back of your mind telling you to hurry up, but surely you agree that, on the Web, there is an instinct to publish first and ask questions later.

You need to ignore that little voice whenever you’re dealing with potentially libellous statements. You need to break your habits.

Responsible journalism

What does “covering your bases” mean? Here we return to the responsible-journalism defence, a new reading in Canadian defamation law that permits journalists to publish unrebutted statements as long as they made “responsible” efforts to secure a rebuttal. (RyeHigh J-school has a pretty good wiki on the subject.)

The Supreme Court of Canada, in Grant v. Torstar, provided a list of requirements for the responsible-journalism defence to succeed. (It isn’t a made-in-Canada invention, but we have it now.) At its core is a requirement that the writer absolutely must go to some length to secure a comment from any entity that might be defamed. In the ruling’s terms, to succeed, it must be true that

[t]he publisher was diligent in trying to verify the allegation, having regard to:

1. the seriousness of the allegation;

2. the public importance of the matter;

3. the urgency of the matter;

4. the status and reliability of the source;

5. whether the plaintiff’s side of the story was sought and accurately reported;

6. whether the inclusion of the defamatory statement was justifiable;

7. whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

8. any other relevant circumstances.

I interpret “diligent” as “diligent.” Vigna v. Levant doesn’t. And that makes the Vigna ruling important.

• First of all, the court found that Levant didn’t even read the transcripts from a hearing “in a diligent manner, but rather chose to extract only one part of the exchange which was taken out of context.”

• Next:

  Was the plaintiff’s side of the story sought?

  Vigna testified that Levant never contacted him to get his side of the story before publishing the above blogs. Levant acknowledged that he never contacted Vigna, but testified he tried to contact Vigna by calling the Commission. Levant has not pleaded that he attempted to contact Vigna before publishing his blogs, and produced no telephone records or any other evidence to corroborate any attempt to speak with Vigna to verify if he had provided a medical certificate to the Tribunal.

  Levant’s evidence in this regard was very general and nonspecific. I do not accept his evidence in this regard and find that he did not make a serious effort or take reasonable steps to contact or communicate with Vigna to get his side of the story. Levant did not leave a voice message for Vigna, and did not send a letter, fax or E-mail to Vigna to obtain his side of the story. Given the total lack of urgency, Levant should have sought Vigna’s side of the story before publishing the defamatory statements.

  I find that Levant did not contact Vigna to obtain his side of the story because he wanted to use Vigna’s unusual words… as part of his campaign to discredit and denormalize the Commission.

As I read this, in the Vigna case a reporter would have had to do two things:

1. At the very least, leave a voicemail. By implication, an actual telephone interview is better.

2. And also “send a letter, fax or e-mail.”

Because of the ambiguity of the sentence, another reading holds that any single action on this list will suffice:

• Talk live on the phone or leave a voicemail

• Send a letter

• Send a fax

• Send an E-mail

This reading is supported by a summary later in the same ruling: Levant “did not send a letter, a fax or an E-mail or, as I have found, make any diligent effort to speak with Vigna.” Another sentence to the same effect is found further on. You could probably assume all four methods are equivalent and your requirement is to carry out only one.

Nonetheless, taking one or at most two actions to get the other side’s comment on a story is a considerable dilution of the Supreme Court’s demand that a “publisher [be] diligent in trying to verify the allegation.” Dashing off a single E-mail hardly seems to suffice, but according to Vigna v. Levant, it does.

This ruling lowers the bar substantially

Because it is so easy to meet the test of responsible communication (at least this single line item on the list of tests in this one precedent), if you don’t do it, your failure to act will surely be used against you and will strengthen your opponent’s case.

What I am saying here is that if all you need to do to act responsibly is dash off a single E-mail and you don’t bother, then you are by definition not acting responsibly and that alone could lose the case for you.

Vigna v. Levant lowers the bar from being “diligent” to making any effort at all. And if you don’t bother to do that, you might get in trouble.

What I do

I have always sought a comment on any statement I intend to make that could be considered defamatory. Now, though, I also make sure to wait what seems like an inordinate amount of time to receive that response before publishing.