Climatologist to test Canada’s defamation laws

Climatologist to test Canada’s defamation laws

Nathan Fan is a JD candidate at Osgoode Hall Law School.

Andrew Weaver, a prominent University of Victoria climate researcher, has claimed that he has been defamed in a series of articles published by The National Post regarding the recent controversies over the reliability of climate science. The statement of claim (courtesy of filed in the B.C. Supreme Court stated that four articles published between late 2009 and early 2010 made various false, malicious and defamatory statements about Weaver. 

Weaver claims that the articles (Dec 8, 2009, Dec 9, 2009, Jan 26, 2010, Feb 2, 2010) and their respective comments, have fabricated stories about Weaver and have manipulated and distorted statements made by him to falsely suggest that he is a corrupt scientist who promotes climate change theories and manipulates evidence to secure government funding.

The statement of claim names the three writers as well as The National Post as defendants in the case. Interestingly, the claim also names certain pseudonymous article commentators as defendants in the claim as John Does.

Weaver’s statement of claim also requests for an unprecedented relief order that would not only require The National Post to remove the allegedly libellous articles and comments from their website and that of third party licensees, but also for the defendants to assist Weaver in removing all electronic copies of the articles and comments across search engine caches, electronic databases, and all other third party websites (whether or not they were authorized by The National Post to be republished).

The unprecedented extent of the relief order is likely in response to the inevitable phenomenon known as the “Streisand Effect”, where a publicized libel lawsuit might be a counter-intuitive strategy in curtailing the dissemination of the article in light of the ease of republication through the various avenues available via the internet. Without such a relief, a successful defamation claim in courts may well be only a moral victory for Weaver.

However, such a relief would set a precedent of responsibilities that raises serious concerns for newspapers and other online publishers. Toronto media lawyer Brian Rogers has stated in a Toronto Star article that such a decision would impose significant responsibilities on mainstream media who have little direct control over the dissemination of the material beyond their own websites once the story is published. The result of a decision granting such relief would essentially require newspapers and mainstream media to police the internet for bloggers and tweeters who have simply cut and paste a story onto their posts.

This discourse represents an interesting crossroad between freedom of press and the right to protect against defamation currently being debated in Canada. The two recent SCC decisions in Quan v. Cusson and Grant v. Torstar (see here for summary) established the responsible journalism defence in Canada, providing some gains to journalists and media publishers in the debate. In the recent IP Osgoode Workshop on Media Suppression (video here), the “Thawing of Libel Chill” panel discussed the gains established by the SCC decisions and commented on the positive steps the courts were taking towards reducing the chilling effect of libel law on media.

If the B.C. courts were to grant the full extent of Weaver’s relief claim, it might represent a substantial step backwards from gains made in favour of journalists in the rights balancing game. On the other hand, it would also represent a positive step forward for victims of defamation, especially in an era of blogging, tweeting and viral videos, where victims face increasing difficulty in controlling libellous material from spreading like wild-fire over the internet.

Weaver’s statement of claim was filed on April 20, 2010 and The National Post has yet to file a statement of defence, but has stated that it “will defend our journalists and we stand by our published news and commentary”.