A variety of news outlets have reported on the defamation action launched by scientist Andrew Weaver against the National Post, its publisher and some of its staff writers. The Toronto Star‘s report, written by Tracey Tyler, indicates the nature of the reaction from some members of the legal community by the title given to the story: “Media lawyers not warm on climate scientist’s lawsuit”.
Media law experts say a libel lawsuit filed by a leading Canadian climate scientist could have enormous implications for newspapers and other online publishers, forcing them to police the Internet for stories picked up by everyone from bloggers to Twitterers.
… In his claim, he is asking the Supreme Court of British Columbia to order the Post to not only remove the articles from its own Internet site and any electronic databases where they are accessible, but to assist Weaver in obtaining their removal from any other website.
Toronto media lawyer Brian Rogers said this might be considered essential by someone who believes they have been the subject of a defamatory story that has “gone everywhere.”
But it would also impose a major new responsibility on mainstream media such as newspapers, which have direct control over a very limited aspect of their publications and can’t control what search engines and bloggers wish to do with a story once published, he said.
“The equivalent would be asking a book publisher to get all libraries to return a copy of a book,” Rogers said Friday.
A copy of Weaver’s statement of claim is publicly available. Simon Fodden, writing at slaw.ca, opines that he thinks the claim for relief is a “a fairly sensible and reasonable claim, particularly when the original publisher has not merely allowed but encouraged propagation”. As Fodden goes on to note:
the request is not for an order requiring the defendant to ensure the eradication of the fruit of a poisonous tree, so to speak. All that is requested is that the defendant be “required to assist the plaintiff” in the endeavour to get libellous material removed.
Moreover, the hunt would not be for wisps of paper tacked to random telephone poles, but rather for material that is meant to be discoverable on the web by search engines. The National Post is a big organization with, one hopes and expects, a sophisticated IT department likely better situated than a personal plaintiff to know the ropes of the internet and to be able to pull the right ones.
There is another element of the requested relief which seems not to be garnering much attention, but which is, to my knowledge, just as novel. As set out on page 41 of the statement of claim, Weaver is seeking an assignment of the copyright in the articles:
(h) an Order requiring the defendants to assign and grant in writing to the plaintiff, all right, title or interest they have in the copyright for the defamatory expression and injurious falsehoods complained of in this statement of claim so that the plaintiff may in his sole discretion take any legal proceedings he considers necessary to restrain the continued republication of the defamatory expression and injurious falsehoods by third parties on the internet or elsewhere
In short, Weaver hopes to obtain a result whereby he will not only be able to sue individuals for defamation if they republish the purportedly defamatory statements, but for copyright infringement as well.
As mentioned, that seems an entirely novel claim for relief. It is unclear on what basis the relief could be managed – would copyright be assigned in the entire article, or just the individuals words, sentences or paragraphs which are deemed defamatory? Levying an award of damages deprives a defendant of their property (ie their money) – is that concept transferable to depriving them of a different kind of property (ie their intellectual property)? It seems that this case has the potential to break new ground in more than one respect.
Obtaining copyright of the defamatory text might be the only way to obtain relief from a defendant who regards themselves as judgment proof, or who fails to exercise due diligence in pursuing take down action against re-posting of the libel.
Australian Plaintiff John Griffin has been unable to obtain any of the financial award ordered by Justice Halfyard in a 2008 case.
Case No. 2008 BCSC 827
Docket No. S42823 (Nanaimo Registry)
 B.C.J. No. 1333
Internet Law Professor Michael Geist has commented that the False News criminal sanctions are still needed to deal with scofflaw individuals who feel that no Civil Remedy can be applied to them.
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