First, a couple of things I'd like to get out of the way. I don't believe Human Rights Commissions are the places to deal with libel, such as the recent cartoon in the Halifax Herald that tags an identifiable person as a terrorist. Nor should they regulate "hate speech" in the media.
(Though if I was defamed in a cartoon and had access to the Human Rights system, I'd use it. Libel actions are priced out of reach of ordinary people, while the Human Rights system is free for plaintiffs. Can you blame anyone for using the system when it's right there, waiting for them?)
I'm also deeply distressed by the apparent use of entrapment techniques of staff of the Canadian Human Rights Commission and the possibility they engaged in the stupid and illegal practice of using a private citizen's Internet connection to do so. While Richard Warman did not engage in these tactics, it's pretty clear others did. I'm eager to see what the Privacy Commissioner has to see about the complaint filed by the woman whose connection was hijacked for the posting of entrapment material on hate sites.)
But I'm afraid Richard Warman has the National Post and several bloggers dead to rights. If you print anything about anyone, especially something negative, you must be able to prove what you are saying. My old sparring partner Bucketsofgrewal, who is very smart, has blown big holes in the Internet speculation that Richard Warman engaged in disreputable behaviour on the Internet. In fact, Buckets' research actually goes very far the other way. Warman's computer has considerable dissimilarity with the one that was used to post offensive material about Senator Anne Cools on a fascist web site.
Warman has sued the National Post and several conservative bloggers for the comparatively nominal amount of $50,000. I know to most of us and to the bloggers $50K is a lot of money. To a newspaper, it's an amount that can easily be justified as "screw off" or settlement money. It's much cheaper than litigation, especially when your case is as weak as the National Post's and its editorial page editor Jonathan Kay. I'm sure their libel insurers will see it that way.
Kay did everything he could to drum up data for a case against Warman while studiously avoiding anything that might have disproved his (and the bloggers) theory. Why do I think that? Because he didn't do one of the most basic acts in fair journalism: seek a response from Warman.
The Post's defence, posted on Bucket's blog, argues Kay was simply in error. Carelessness does not mitigate damages. In fact, it works the other way. Pleading stupid is a very poor move in libel law. The Teskey, Heacock and Ferguson vs. Canadian Newspapers Ltd and Midland Free Press case that went to the Ontario Court of Appeal in the late 1990s dealt with the issue of retractions. They are somewhat useful, but they have to be complete and heartfelt. (The newspaper in the Teskey case had used weasel words in its retraction. The suit cost over $2 million and could have been settled early in the game with a $3000 donation to charity). This is where the Post has a problem. How can you have a complete and heartfelt retraction when the Post continues to make common cause with people who have not retracted the allegation and, from what I've seen at Small Dead Animals, continue to make them? Steyn, too, has been on the road making the same claims about Warman. Recently, he and Mike Duffy talked at length on TV about this stuff. I was shocked to see Duffy adopting Steyn's cause and leaving himself open to be sued.
I do wonder why Warman did not sue. As I've said, this is not a simple case and there are many hidden agendas and varying shades of grey.
I think a court would look at the suit as a whole: several defendants who show blatant malice and refuse to seriously consider a retraction and a newspaper that carelessly adopted their cause with the most cursory "investigation", then tried to escape from the situation with a pro-forma retraction. The new "honest mistake" rule from the recent Ottawa Citizen case at the Ontario Court of Appeal won't wash, because the "honest" aspect has to be clean as a hound's tooth. This is not an honest mistake made by "objective" journalists who were somehow misled in the course of a normal news-gathering operation. This was the Post chiming in during a malice-driven blog attack on Richard Warman's personal and professional reputation. I think Kay did it to get right-wing cred. The telling point, the really fatal one to the Post's case, is Kay's recklessness and callous disregard for Warman's reputation. And it certainly won't help the Post's case that Kay's a lawyer. He should have known the law and he certainly should have understood the situation he was involved in.
The Post also claims the damage, if any, was temporary, since the Post retracted the article. This defence relies on the assumption that people believe retractions. They don't. Most educated people know that news retractions are usually made simply to save the cost of litigation. As well, the Ontario courts have ruled that there's nothing "temporary" on the Internet. If you want to find the Post's allegations against Warman, they're still on the Internet. They always will be, for the whole world to see. Damage to reputation committed on the Interent, with all of the caching systems available, is far more permanent than damage on TV, in newspapers and magazines. TV signals tend to go into the ether. Newspapers go to recycling. But the Warman posts will be in Google's cache system, available to anyone with any computer skills, anywhere in the world, for the long foreseeable future.
The downside for the people who would like to see Kay and the Post fry is that the Post has libel insurance, so it won't directly cost the apper much money when it throws in the towel. I've recently seen some cases settled by insurance companies for around the figure that Warman wants. I think he should have asked for more. (My wife learned a little saying at law school: a settlement costs a car, litigation costs a house). He may quite easily end up with his $50K and an apology from the Post. It will be much more interesting to see what happens with the bloggers.
The lesson of this is to be careful. If you are going to try to take down a lawyer, you better have your facts straight. You better look at every "fact" the same way a judge would. You better have good documents and witnesses who are solid citizens. And the defendants in this lawsuit aren't even close.