Thursday, October 14, 2004

Stepping back a bit

I'm not overly interested in saying more about Kinsella and Damian Brooks, but since not too many people seem to have read The Babbler's original post, and even fewer have offered up much in terms of what defamation exactly is, I thought it might be worth a few words.

My experience, in communicating with fellow "web-loggers", is that no one is out to make enemies or cause serious trouble. We do it because it's an opportunity to think and to write, and by extension, to learn. So maybe a quick review is in order for learning purposes - feedback, of course, is very welcome.

First, I don't remember the entire post word-for-word, but I assure everyone that it did not stand out as particularly malicious or acidic in the slightest. However, one of the comments, by a Tracy in Winnipeg, certainly was. This may have affected Kinsella's perception of the original piece.

Basically, Brooks referred to consecutive posts Kinsella made on October 11th and 12th, which you can read for yourself. Brooks then argued that Kinsella reinforces one of Steyn's points, represented by: "We honour Christine Hanson's memory by righting the great wrong done to her, not by ersatz grief-mongering." This segued to a couple of sentences expressing how he found Kinsella's grief to be distasteful, considering his longtime association with the Liberals, and the fact that they have been governing (and responsible for the military and procurement) for roughly 30 of the past 40 years. This thought ended with the sentence (Brooks' italics): "You were part of the problem".

Is this defamation? Here's a pretty clear and concise description of the concept, thanks to my research assistant:
The more modern definition (of defamation) is words tending to lower the plaintiff in the estimation of right-thinking members of society generally.

So in the absence of any exceptions, Brooks certainly was defamatory. Of course, there are defenses:
1. The "defamatory" remark was basically accurate.

2. The plaintiff agreed with the defamatory remarks. For example, if the plaintiff subsequently publishes the remarks, they would be hard pressed to succeed in a defamation claim.

3. Some special privileges exist for remarks made in certain venues such as in a court room during trial or in a legislative assembly or one of its committees. A privilege against defamation claims also exists for judicial or legislative reports.

4. There is what is known as a "qualified privilege" where remarks that may otherwise be construed as being "defamatory", were conveyed to a third party non-maliciously and for an honest and well-motivated reason. An example would be giving a negative but honest job reference. [...]

5. Citizens are entitled to make "fair comment" on matters of public interest without fear of defamation claims. A good example of this is a letter to the editor on a matter of public concern. The author of the remarks may even go so far as to presume motives on the part of the person who's actions are being criticized provided only that the imputation of motives is reasonable under the circumstances. The rule of thumb is that the fair comment must reflect an honestly held opinion based on proven fact and not motivated by malice. It should be noted, however, that some provinces have enacted laws which give their citizens varying rights to "fair comment."

Damian would seem to be well-protected by Item 5 - Kinsella muses several times a week on his free, no-login, no-restrictions website, which you can fairly say invites comment. And certainly anyone who has read Damian's website for any length of time would agree it appears to represent "honestly held opinion", and it certainly is not motivated by malice.

But even if he wasn't protected by Defense #5, how about #1 & #2? The remarks were certainly accurate, in the sense that the Liberals have been governing since 1993, and are responsible for our military. The only grey area is regarding whether Kinsella had any significant role in the government or party. That's where #2 comes in: whether true or not, and regardless of any specific relevant statements he has made, he has plainly traded on being a person of some importance in the Jean Chretien Liberals over the past several years - it's what makes people interested in what he has to say. (Is there another reason?)

Again, comments are encouraged. Obviously, I think Kinsella's tactics are strange, and agree with the bullying characterization. It also seems odd that he is devoting so much energy recently to asserting his irrelevance - Don at All Things Canadian has a roundup relating to this and Adscam.

I certainly would not hold Kinsella personally responsible for the death of Chris Saunders, and there's no way anyone could have thought Damian was, either. However, if you're making a list of people who have actively or loudly pushed for increased funding for the Canadian military, neither Kinsella, nor me, nor 95+% of our population would be on it. And as Grandpa used to say, if you're not part of the solution...

UPDATE (Oct.15): More, a day later.
UPDATE2: And more.


At 4:36 PM, Anonymous Anonymous said...

There is an extended comment session going on at Blogs Canada about the whole Kinsella thing.

Here is what he, himself, had to say:

Hey guys - sure is odd to see oneself talked about in this way. I'm in the weird situation of not being able to explain my position because that would have the effect of repeating libel. So let me ask two hypothetical questions:

1. If you were accused of being complicit in a soldier's death, would you let it stand?

2. If one of your parents recently died, and was called "retarded" by someone trying to get at you, would you let it stand?

I can only answer for myself, but I can assure that my answer is no - any person who publishes terrible things like that should be required to answer for it.

There are limits, even out here in the blogosphere.

Warren K
- jass


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