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Canada’s Scales of Justice … Avoid ‘falsehoods’? Or ‘chilling’?

Andrew Weaver, a prominent Canadian climatologist and IPCC contributor, raised eyebrows across the climate media world recently when he filed a libel suit against a right-leaning newspaper for its tough criticisms.

In late April, Weaver filed a complaint in the Supreme Court of British Columbia contending that the National Post was guilty of libel in a series of recent articles attacking him and his work.

The articles contain “grossly irresponsible falsehoods that have gone viral on the Internet,” and they “poison” the debate over climate change, Weaver asserted in a statement at the time the suit was filed. (Download the complaint here.)

It is certainly one of the strongest salvos fired back by any member of the international scientific community against a widespread barrage of skepticism that has rained down since the hacked e-mails fiasco at the University of East Anglia first broke late last year.

The lawsuit goes after the Post‘s editor and the writers of the articles, published between December 2009 and February of this year, and also against various online posters who in online comments added negative characterizations of Weaver’s work.

Weaver, chair of Canada Research in Climate Modeling and Analysis at the University of Victoria, also asks for court help in getting the articles removed from a list of sites around the Internet where they have been republished, and from news databases such as Lexis-Nexis and Factiva.

Weaver: Sit Back? … ‘Libels on the Internet Forever’

“If I sit back and do nothing to clear my name, these libels will stay on the Internet forever,” he said in a statement. “They’ll poison the factual record, misleading people who are looking for reliable scientific information about global warming.”

The Post articles attack Weaver on many fronts, from the general to the particular: they call him “Canada’s warmist spinner-in-chief”; they say that he claims that the fossil-fuel industry may be responsible for break-ins at his research office; they take issue with his defense of the iconic “hockey stick” graph of global temperatures for the past 1,000 years; and they generally impute to Weaver various views that he claims he doesn’t have, such as the notion that he is now rejecting IPCC.

Given the broad First Amendment protections in the U.S., Weaver’s fight may be hard to conceive of for American journalists and scientists. That’s not the case north of the border, though.

An impact on Web beyond Canada’s?

“Libel law in Canada is often seen as the most regressive in the English speaking world today,” Bill Kovarik, professor of communication at Radford University and a 2009 media fellow at the University of Western Ontario, told The Yale Forum. “A case like this, based only on political criticism, would likely be dismissed on a motion for summary judgment in the U.S. In Canada, the burden of proof is on the defendant, not the plaintiff, so the National Post (one of the most conservative papers in Canada) is going to have to prove their claims are either true or fair comment, and this will be difficult in the Canadian system.”

Online Commenters – Fight the ‘Good Fight’ or ‘Chilling’ Impact?

Popular sentiment on the Internet is, predictably, all over the map, with some saying that Weaver is fighting the good fight, others saying his lawsuit could have a chilling effect on robust debate.

Just a couple of examples illustrate the range of opinion.

Discover blogger Phil Plait wrote that he was “glad” Weaver is pushing back, especially given all of the attacks on scientists in recent months. “This attack on the reputations of scientists is nefarious; reputation is extremely important when it comes to a scientist’s career,” Plait wrote.

“Getting grants, invitations to talks, even being taken seriously, all can rest on the respect they get by other scientists and the public.”

In contrast, some media watchers in Canada are not at all eager to see the suit succeed, reports The Star of Toronto. The newspaper reports that the litigation could force news organizations to censor content and police comment threads and social networking sites. One media lawyer said it would create an “impossible burden.”

The U.K. Guardian also reports that the case carries with it “potentially huge consequences for online publishers.”

Toronto-based journalist Sharon Oosthoek, a member of the Canadian Science Writers’ Association, said she realizes that Canada’s libel laws “have been unfavorably compared to those in the U.S.,” but she nevertheless endorses the Canadian system.

“As a journalist, I’m of course a defender of free speech, but I can’t say I’m convinced that Canada should change its libel laws accordingly,” Oosthoek told The Yale Forum. “I would argue that getting it right is a fundamental pillar of good journalism, especially in climate science journalism where so much is at stake. While journalists are human and may not always get everything right, I believe most of us genuinely want to publish only what is true, and our libel law reflects that sentiment.”

Jonathan Zittrain, professor at Harvard Law School and a co-founder of the Berkman Center for Internet & Society, notes that the lawsuit has a certain irony.

“I suppose (Weaver) will be battling the Streisand Effect,” Zittrain told The Yale Forum, referring to the tendency on the Internet for information to proliferate and be publicized more widely when threats of censorship arise. “But he may think it helpful to have a court judgment that he’s been libeled – which is a way of more authoritatively setting the record straight. In that case it may be less about trying to take down the bad speech than about establishing definitive ‘curative’ speech with which to answer it.”

An Impact on Web Discourse Beyond Canada?

As Zittrain suggests, carrying out censorship in the Internet age – even legally valid censorship of libelous content – remains problematic, given the global nature of the Web. There are questions about how one could absolutely suppress anything, short of using China-like draconian measures. The Post articles in question, for example, have proliferated to sites and domains beyond the reach of the Canadian authorities.

But there is another side to that issue.

“Given the borderless nature of the Internet, libel plaintiffs these days can get away with a fair amount of forum shopping for the most favorable jurisdiction,” Sarah Hinchliff Pearson, Residential Fellow, Center for Internet & Society, Stanford Law School, told The Yale Forum.

“If they are able to bring their cases in courts with more lenient libel standards (such as Canada vs. the U.S.) and get an injunction to have the publisher help take down all reproductions of the alleged libel, the implication for publishers would be profound,” Pearson wrote in an e-mail interview. “This would mean that the countries with the strongest libel laws could effectively police the Internet, regardless of the legal standards in other jurisdictions.”

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