Antiquated Defamation Laws and the American way to Insult

by Miné Salkin | Nov 25, 2008 | Uncategorized

At the 2008 MTV Video Music Awards, British Comedian Russell Brand ridiculed the current President George W. Bush by referring to him as a “retarded cowboy,” giving rise to a potentially libelous case. 

Brand prefaced this shocking statement by imploring the American public to vote for Obama in the next presidential election. He then went on by saying:

“Some people, I think they’re called racists, say America is not ready for a black president,” he said, going for a naive candid approach. Brand has been known to insult basically everyone, including himself.

What was the result? At first, the audience was uncomfortable, but still a half-hearted roar of laughter shortly ensued. In the next few days, countless online forums streamed critical remarks about Brand’s unconscionable nerve, and the controversial insults he had made to one of the world’s most patriotic nation.

Russell Brand: Fearless

He also was guilty of self-slander in his comment that his haircut could be interpreted as mental illness, making fun of his giant black mop of a hairdo. 

Brand then continued his jibes by insinuating that American people had lower standards in terms of electing officials:

“But I know America to be a forward thinking country because otherwise why would you have let that retarded cowboy fella be president for eight years?

“We were very impressed. We thought it was nice of you to let him have a go, because, in England, he wouldn’t be trusted with a pair of scissors.”

The fact is, Brand is known for stirring up controversy through his witty half-insults, but he isn’t likely to be sued for it. There’s freedom of expression for you.

The Language of the Law

Most succintly put, defamation happens when something negative is said about a person’s character, insinuating an immoral or degenerate streak in that person’s attitudes, behaviours or actions. We’ve all seen instances of this in local media reports, from a negative review of said politician, to the highlights we see in the tabloids about the lives of our favourite celebrities. 

Such statements need to be published in a medium that reaches a wide audience, and the reasonable identification of a person must be made in order to meet the qualifications of libel. What complicates this legal issue is that statements that insinuate, rather than explicitly defame somebody’s character can also be the subject of dispute.

While defamation is used to denote the entirety of the legal issue, it may be parceled into two types of torts: libel and slander. Libel is when a defamatory situation is printed, broadcast, or realized in a fixed medium that has access to an audience. Meanwhile, slander is understood as the verbal action of defaming a person.

Canadian Law is a dynamic, organic social system that changes and adapts to social patterns and ideas of justice, and defamation like any other legal topic is subject to change and revision to better suit social demands. Originally, the libel laws were instituted to create an environment that gives enough scope and breadth in the discussion of people and their characters, while aiming to create protection against unnecessary injury and distress by the media. The problem is, Canadian law hasn’t reformed its policy on libel, and as a result, we’re pegged into possible lawsuits whenever somebody wants to have a laugh at someone else’s expense.

The Issues

One of the central issues that arises with defamation laws is that it contradicts fundamentally with the principles of free speech, and on some occasions, can prevent the right of the media to free and open discourse of court cases. 

Without quoting the Charter, it is pretty much common knowledge that everyone has the freedom of speech, and there is a more impending responsibility on the media to play the role of the unbiased messenger when it comes to relating news issues. But when egos are wounded this becomes a sticky issue for the crafty journalist who needs to get their point across, without sounding biased or creating new meaning with other people’s words. Whether or not a defendant is guilty of a crime, and their suspicion is published in a news report, the defendant may sue a journalist if their name is reported in a defamatory way.

Similarly, the question of malice arises as another difficulty for both journalists and defamed characters. How does one prove that a journalist honestly published a defamatory statement about an individual knowingly that the information was incorrect, or to be interpreted in a metaphorical way?

In 2007 this issue permeated a widely publicized case involving WIC Radio journalist Rafe Mair and Kari Simpson, a well-known social activist who protested against homosexuals. During one of his editorials, Mair and Simpson debated whether or not the education system promoted tolerance of homosexuals, or that it encouraged the adoption of a homosexual lifestyle. After disagreeing with each other, Mair broadcasted in his editorial that Simpson’s public persona as a homophobe and likened her to Klu Klux Klan and to historical fascist Aldolf Hitler.

Hitler and his trail of hatred

Deeply offended, Simpson sued Mair for defamation on the basis that he insinuated that she would condone or even encourage violence against homosexual individuals. Mair’s defense was use of fair comment, pleading that his comments were intended to convey the opinion that Simpson was intolerant, which is a belief that most could honestly hold in view of her homophobia. 

While Brand got away with calling Bush a developmentally-delayed equestrian, Mair got into a lot of trouble just by calling Simpson a Nazi – which was a comment spurred by her lack of sympathy for homosexuals. If a comment can damage someone’s reputation, that comment is potentially libelous.

While Mair’s intention was to depict Simpson in a truer light that represented far-right wing convictions, what  lost him the case was the insinuation that Simpson would condone violence. Since Mair could not honestly hold this belief, the defence of fair comment failed.  

Defence

Luckily for journalists, there are ways of fighting off libelous accusations. Although Canadian defamation laws are heavily weighed in favour of the plaintiffs, the responsible journalism defence may provide insight onto how matters of interest in the media should be given more leeway. 

Fair comment is often used by defendants because it implies free speech and social values associated with it.  If I publish an article that says “Barry Bonds is a steroid junkie,” why should that be cause for libel? To save face for BALCO? Just looking at the Major League Baseball outfielder over the years, it’s quite fair to say that his body evolved in a way that doesn’t look incredibly natural. On the other hand, this statement, which proved to be true, turned into a big controversy for the athlete, causing reputational loss.

Maybe that’s opinion then. If I wrote “My opinion is that Bonds abuses steroids” then we seem to be in a different playing field here, no pun intended. Opinion as defence would seem the most clear, or the surest way to get out of a libel suit, because it is essentially not falsifiable. In other words, it’s pretty hard to tell whether or not I believe my own opinion, which is an opinion regardless, not based on facts but beliefs rather.

What about the truth? Didn’t Bonds actually take steroids that were undetectable by drug tests? Then why was so much controversy stirred up? Bonds could have argued that he suffered damages from the statements published that he was taking performance-enhancing drugs, but only because such a law exists. 

It’s possible that people only publish defamatory content when they have good cause to, namely strong evidence that supports their statements. Defamation laws undermines this tenet of free speech and human rationality, by protecting people who in most cases are guilty of something else. 

The 200-year old mistake

So Canadian defamation laws haven’t been reformed in two centuries, but so many other interfaces of the law have. In America, the Public Figure doctrine applies special rules for libel cases involving high-profile figures. They must prove that actual malice was the cause behind the publication of a defamatory statement, knowing it to either false, or with a reckless disregard to its truth.

Perhaps it is possible to set aside different grounds for what journalists can and cannot write about without affirmed, positive confirmation. For example, Kari Simpson was unreasonable to point the blame on Mair, because everyone knew that the Nazi comment was metaphorical, not a literal statement that she participated in KKK events. This complain of “supposed reputational loss” seems petty, especially considering Mair’s style of radio broadcasting.

According to the Associated Press, nearly 95% of libel cases reported in the news arise from “run of the mill” local stories, rather than high-profile events. 

Remember the infamous O.J. Simpson trial? Simpson had been well-known in America before the historical trial as an athlete and a public figure. Nearly every day of the trial was on television internationally, as the world watched the court invade nearly every aspect of Simpson’s personal life.

Simpson: the media offered full coverage

The American way is that public figures are pretty much fair play in terms of parody, mockery, or general criticism. In 1964, the New York Times Co. vs Sullivan case determined new grounds for proving malice, which has drastically improved the rights of journalists in respecting free speech privileges. 

Russell Brand and the “Retarded Cowboy”

It seems that while Canadian defamation laws are becoming antiquated, and neglect the real issue of guaranteeing free speech and expression of opinion, the Americans seem to have all the real fun in making jibes at public figures. In most cases, the US has a more laid-back approach to slanderous or farcical depictions of public figures in relation to Canada’s legal policies. Such slanderous and mocking attitudes are often adopted most notably in ‘alternative journalistic’ mediums, such as the very popular news shows The Colbert Report and Jon Stewart’s Daily Show. In these cases, writers are given the ability to portray public figures in a satirical, but often true light. 

Nearly a month after the MTV MVA’s, Brand revealed that he received death threats after making jokes about the President. Brand said that he “didn’t expect people to get that annoyed by it,” and that it was a huge jump for a viewer to go from not enjoying his show to wanting to kill him.

“These Christian Republicans were watching me and thought, ‘Well, this is no good, I shall do a death threat.”

Brand has possibly spurred the hatred of many people, but all for the sake of comedy.

Defamation can Colour our World

In 1990, a journalist with the Canadian Broadcasting Corporation had written a thinly-researched report on mercury content on Colour Your World paints, but the broadcast did not seek a more logical explanation for the lack of evidence in the case, which in the end were untrue. 

Based on the rulings on the fair comment defense, and the issue of malice, Daniel J. Henry of the CBC’s Toronto office said the decision would be appealed. 

More specifically, Henry said that the judge’s ruling that a broadcaster was legally bound to produce a  “balanced” report was a restriction of freedom of expression. The criticism was that failing to create a balanced report of this nature would be proof or evidence of malice.

“While our programs have journalistic standards, while we believe that those standards were met in this case, we do not accept that there is any [precedent] that establishes a duty to produce a balanced show,” Henry said. Rightly so, he argued further that journalists and other individuals should be allowed to produce reports in whatever way they feel necessary to express themselves, to add drama, colour or effect to their story.

“If we were all required only to speak in ways that were balanced I think we’d be living in a very strange world,” he said.

Canadians… what are we going to do? A Solution for Journalists?

For journalists, being good at what you do can save make the difference between libel and a good, juicy, error-tight story. Dean Jobb highlights how the responsible journalist can evade legal suits by being a good journalist. 

According to most legal textbooks, the best defence against libel is the power of skepticism. Not only should responsible journalists second-guess themselves and the situations they perceive to be true, but they also take into consideration possible hidden agendas or invisible motives that tipsters or interviews may follow. In the same vein, realism and the constant analysis of information surrounding a story is imperative to avoiding the “libel chill.”

Another defence that is used more often than it should be is the practising of restraint on the part of the journalist. While it is often much better to let off a while and wait for people speak for themselves, writers should be able to practise and enjoy their rights to free speech in their preferred medium. 

We need to change the laws to something more along the lines of the Sullivan case outcome. Journalists and all other writers for that matter shouldn’t have to worry about supposed reputational losses for public figures who should know by now that they’re going to be criticized no matter what they do. Being in the public realm inherently implies that other people are going to disagree with you. If Canada wishes to preserve its standing as a free country, it should hopefully change the law, hopefully within the next two centuries.