Law Times

Law Times • February 28, 2011 NEWS PAGE 3 liberties advocate says. "I think we have to accept that if we Officials need thicker skin: Des Rosiers P BY MICHAEL McKIERNAN Law Times ublic offi cials should develop a thicker skin when it comes to defamation suits, a leading civil do anything in life, we will be defamed," said Nathalie Des Rosiers, general coun- sel at the Canadian Civil Liberties Asso- ciation. "If you exercise any authority, there will be somebody out there who will post something nasty about you." Des Rosiers was speaking at the an- nual conference on Crown liability or- ganized by Osgoode Professional Devel- opment on Feb. 18. She was on a panel looking at the implications of the so- called Offi cer Bubbles lawsuit fi led by Const. Adam Josephs, a Toronto police offi cer involved in the G20 summit. A video of Josephs warning a young fe- male protester that she risked arrest for assault if the bubbles she was blowing in front of his face hit him went viral after the summit in Toronto. Josephs fi led a $1.2-million lawsuit seeking to force YouTube to reveal the identities of a user who created ani- mated shorts parodying his actions and anonymous commentators who made "devastatingly defamatory" remarks about him. According to Des Rosiers, the lawsuit had a chilling eff ect on legitimate criti- cisms of excessive policing during the G20. Josephs would have had a much tougher time under U.S. law, which identifi es public offi cials as a special group for the purposes of defamation matters and sets the bar for success much high- er than for private citi- zens. In Canada, there's no such distinction. "For people who were following the G20 aftermath, there was a dampening of the criti- cism for a little while until eventually satire recovered and people just went back at it," Des Rosiers said. "But it did create a chill." It's a trend she sees repeated in numer- ous cases brought to her organization in which citizens have faced libel lawsuits from mayors and oth- er public offi cials for criticizing their local governments. "People are sued a lot for what they say on the Internet. Our concern is that until the lawsuit is dismissed or indeed aban- doned, people actually stop talking. We see the way in which defamation suits are sometimes used to silence people. It's a good investment for so- ciety to have people being able to crit- icize and monitor what's going on." Julian Porter, a defamation lawyer to the second page of a search screen and defl ect criticism eff ec- tively. If that sounds too expensive, doing nothing can be almost as good in most cases. "People will forget," Porter said. "It's when you take action that they get curious. You've got to have great deter- mination to go through with a libel suit." Des Rosiers noted The so-called Officer Bubbles lawsuit put a chilling effect on legitimate criticism of police, says Nathalie Des Rosiers. Canada's courts have made defamation suits less enticing in recent years by expanding existing defences and introducing an entire- ly new one for libel, responsible commu- nication. It allows for the defence of libel- lous statements on matters of public interest as long as there were reasonable steps to ensure their accuracy. Des Ros- iers hopes the evolving law on libellous comments by anonymous commenta- tors will further reduce the limits on free speech in Canada. In order to reveal someone's iden- who has acted for both defendants and plaintiff s, argued the legal route may not always be the most eff ective one for plaintiff s anyway in an era in which media and communications strate- gists are able to push negative stories tity, courts here must be satisfi ed that the pubic interest favouring disclosure outweighs the legitimate interest in freedom of expression. In Des Rosiers' view, online anonymity has some val- ue that deserves protection. "At times, people have diff erent lives," she said. "Particularly if you are in government, you may not want to sign your name to comment on a blog. You don't want your colleagues to know what you're do- ing but you have something to say." In cases like that of Josephs in which the subject is in a position of authority, commentators should have more protec- tion, Des Rosiers said. "Th ere are a lot of reasons why people don't post comments against police offi cers using their own name. Th ey are afraid of repercussions, they're afraid of being stopped more of- ten, asked their identity more often." Porter, meanwhile, noted many people wrongly assume the Internet is a safe haven for free speech. "People come to you when they receive a notice and they're unaware that the Internet is sub- ject to any law. Th ey say, 'It's the Inter- net, I can say whatever I want.'" But as Des Rosiers pointed out, the attitude people take to what they read and write on the Internet is im- portant in libel cases. "Th e context in which the remarks are made do infl u- ence whether or not the average person would fi nd them credible. People are on the Internet like they are around the water cooler. We're becoming con- sumers who consume information in a savvy way. People don't rely on what they've read on YouTube." Porter, however, said only a judge should decide whether or not the words were believable. "If I put in the Inter- net that you are some sort of pervert or, as a lawyer, that you are a professional perjurer, you'd be quite pissed off , water cooler or not. Once you've been hurt by the words, and words can really hurt, water cooler isn't a great answer." As a driver, you do this... ...as a lawyer, you should also do this Membership in the Canadian Bar Association (CBA) is about security and your peace of mind. The CBA provides you with access to the influ- ence, leadership and protection of the only national organization that promotes the interests of lawyers and upholds the core values of the legal profession. The CBA works to improve your skills and expertise through leading Profes- sional Development programs, along with access to the latest information and trends in the practice of law. The CBA acts as one strong and unified voice of the profession on funda- mental issues that affect lawyers directly, such as defending solicitor- client privilege, leading the debate on conflicts of interest, and facilitating positive changes that assist you in your practice. Become a member today www.cba.org. INFLUENCE. LEADERSHIP. PROTECTION. Untitled-3 1 www.lawtimesnews.com 2/23/11 9:57:22 AM

• Cover
• Thick Skins
• Philosophical Roots
• Focus On Labour & Employment Law