A few hundred years ago, during a night of drunken carousing, young gentlemen would argue, like men everywhere, about women and money. But instead of simply punching an opponent in the nose, a gentleman would thwack him across the face with his glove, crying: “You cad, sir! ” The cad would stagger to his feet and slur: “Pistols or swords?” As the sun rose, the two of I them would make their way to a park or deserted field and duel until one was killed or wounded.
Duelling struck other people as dumb, especially, I suspect, women who were stuck with a dead lover or assassin. As Ottawa lawyer Warren Kinsella pointed out in The Globe and Mail last January 30, “16th-century jurists, intent upon protecting the feelings of British aristocrats, developed the law of defamation and slander primarily to prevent the use of duels to settle matters of personal honour.”
Personal honour? What on earth does that mean in Canada in 1992? Nobody knows. Ontario’s libel law does not define “reputation.” Nor does it define “defamation.” In libel suits, judgments are made on an ad hoc basis by individual judges or, rarely, by a jury. Therefore, when writers are creating a story, a column, a novel or a song, we have no way of knowing in advance whether or not our words may be deemed “libelous” by at least one of our readers. Since most writers don’t know anything about the libel law, and I don’t want to-it’s scary as hell we are flying blind, and some of us wing it right into a libel suit.
It happened to me in 1990. I wrote a column for The Canadian Forum, a small, critical journal about politics and the arts, in which I questioned the appropriateness of the personal corporate affiliations of the chairman of the Canada Council, Allan Gotlieb. Since the council is a public body, I felt my column would provoke a useful public examination of an organization with immense power over artists’ lives, including mine. Instead, it provoked a libel suit from Gotlieb against myself and The Ottawa Citizen which had reprinted the column.
Silence. That was the first and most traumatic consequence of the suit. I was told by the Citizen’s lawyers, and thank God for them-I was a free-lance, second rights columnist and they could have washed their hands of me-that anything I said, even to a friend, could potentially be used against me in court as evidence of malice. Any further discussion of Gotlieb and the Canada Council, by me or anyone else, could lead to aggravated damages.
Malice, or malicious intent, is the black heart of the libel law. Truth is no defence. I am constantly puzzled and amazed by writers such as Philip Mathias of The Financial Post who defend the current libel law because “publisher and author are terrified into making sure everything published is factual and fair.” The idea that the media should allow themselves to be terrified is peculiar enough, but in a libel action, the accuracy of any statement is largely irrelevant. There is a case currently before the courts in which the facts in the story are not in dispute; what is being prosecuted, for more than $1 million in damages, is the alleged malicious intent of the story.
How can anyone know what a writer intends? Often writers don’t know-we cast our words upon the waters-but we do know from experience that all of our readers draw dramatically different inferences and conclusions from what they read, and many of those inferences come as a complete surprise to us. For an individual to interpret accurate analysis as a slight or an insult, a question of “personal honour,” is to negate the democratic process. The tight of the public to know must take precedence over the privilege of an individual to stifle criticism or avenge his wounded ego.
Writers are responsible for the inferences people draw from our stories because we have to prove our own innocence. Only in libel actions is the defendant guilty until proven innocent. The law assumes a “reputation” has been damaged, and the writer meant to do so. Take that, you cad! Thwack, thwack! Compared to a libel suit in Ontario, a duel is quick, easy and cheap. The guys who fought duels were also fond of burning witches, or strapping women to a dunking stool and immersing them in a lake for several minutes at a stretch. Anyone who survived had to be diabolical, only the innocent drowned.
The dunking stool is now called “examination for discovery,” and it permits a plaintiff’s lawyers to grill a writer not only about the published story, but about his previous drafts, notes and sources, his earlier published and unpublished work, his career, his associates and his motives. Writers and publishers strenuously resist divulging this irrelevant and potentially self-incriminating information, especially if a source has been guaranteed anonymity, and the process of discovery, and eventually trial, can consume months and even years of legal maneuvering. The lawyers’ computerized billing meters are running at up to $300 an hour it doesn’t take long to hit $100,000, and bankruptcy. There is no legal aid for libel suits.
But there is libel insurance. Sure, for the corporations that can afford it, and if the insurance is heavily used, the premiums become exorbitant. For individual writers, insurance is prohibitively expensive, yet book publishers’ contracts insist that the writer indemnify them against a libel suit: the writer takes full responsibility.
“I thought I was going to lose my house,” says one established writer whose publisher initially refused to defend her. She felt she could not afford to hire a lawyer and began to research the law herself when a friend intervened and the publisher relented. Self-employed writers are not wealthy people, and our assets are invested in our homes, our RRSPs and our savings-all this can be wiped out in a few months by being forced to defend a libel suit. The amount of damages claimed, whether $1 million or $100 million, is essentially inconsequential since the actual awards are relatively small.
Fortunately, publishers and broadcasters customarily choose to defend their writers. But they are often tempted to settle out of court with an apology or a cash payment, even when none is legally justified, and, in the interests of survival, let their writers take the rap. As the result of a libel suit, or even the threat of a libel suit, books are pulped, or, in some cases, killed before they are written. Libel suits are not, as commonly believed, the result of carelessness or “lazy journalism.” Controversial stories or columns, including my own, are read and corrected by editors and lawyers, yet the writers and publishers are still sued.
Some of my best friends are lawyers, but I don’t want them writing my stuff. Being “lawyered” is now a universal and pernicious part of the publishing scene, and in the words of one business editor, stories are commonly “eviscerated” of all meaningful content before they are published. Most lawyers will change an exciting phrase into a deadly cliche, they will wring every possible nuance and ambiguity out of a sentence in the interests of caution. For the writer, there is no longer any joy in the exercise. The creativity, the spark and freedom are gone, and we might as well be lawyers. It would be better to be in jail.
There is a common belief that the libel law acts as a deterrent, and if it is liberalized the media will be full of false and malicious gossip about you and me. However, the cost of a libel suit is so great that ordinary people cannot afford to sue; the libel law is a deterrent only in the case of the rich, particularly large corporations, including public corporations that can effectively suppress discussion about their operations. There is no time limit during which a suit must proceed to trial; many statements of claim simply sit there for years, sometimes until the plaintiff dies.
Until last year, a libel suit was treated as a nasty little secret, a taboo subject like AIDS or herpes. My friends were afraid to phone. “Are you all right?” one nervously asked me after news of my libel suit hit the press. I felt as if I had cancer. Even worse, I became doubtful about my most trusted colleagues. Do I dare talk to this person? Will she betray me? Libel suits breed a poisonous miasma of fear, suspicion and secrecy, and silence deprives writers of our one great weapon, words. Being forced not to write, not to speak, is a lesson in totalitarianism that leaves an indelible impression.
Fortunately, I was not alone. It seemed that almost everybody was being sued, including an editor I had worked with years before. One day she phoned; we got together for dinner, and from that encounter grew a small, informal network of book, magazine and newspaper writers, called Writers to Reform the Libel Law. From January to April 1991, we met frequently, in deliciously clandestine circumstances, to draft a brief, “A Dangerous Silence,” which we presented to the government of Ontario on May l. We were simply plugging into a process of reevaluation that had been initiated by the previous Liberal government because there is a growing consensus that the libel law contravenes the Charter of Rights and Freedoms and would be struck down by the Supreme Court of Canada on a test case.
Libel is now a political issue. Libel suits are rarely reported-writing about a libel action can implicate a reporter in a suit but so much is being written about the iniquities of the law that the public is becoming aware of the “white space,” the books and stories they are not reading because the law prevents them from being published.
Much of the credit for breaking the silence belongs to the Writers’ Union of Canada, PEN Canada and the Periodical Writers’ Association of Canada., who organized a demonstration in December 1990 and launched a protest campaign that has gained support from the Southern Ontario Newspaper Guild and the Writers’ Guild of Canada. These protests have focused attention on freedom of speech, and have raised public awareness about how little of it we actually possess; even “fair comment,” the most popular defence in a libel suit, is not a guarantee of success.
Allan Gotlieb withdrew his suit against me in December 1990, and he and the Citizen later went their separate ways. Other writers are not so fortunate. Many live with the nightmare of a libel suit for years, a dark cloud of anxiety and a burden of litigation that interferes with their ability to work and insidiously undermines their confidence. One investigative reporter I know faces from 15 to 30 outstanding libel actions at any given time, many of them brought by politicians. He wastes a lot of time in court, and a lot more in his lawyer’s office.
The government is drafting a new law of defamation. We may see it by June, we may never see it at all. However, writers have won a seat at the discussion table, and the Minister of Culture and Communications has been given some responsibility in addition to the Attorney-General. I hope the new law will no longer permit the media to be terrorized, or the courts to be used, in the gloating words of one plaintiffs lawyer, as “an instrument of revenge.”..