Green party uses new libel defence in defeating dropped candidate’s lawsuit

The Canadian Press ~ The News
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VANCOUVER — The federal Green party has successfully defended itself against a libel suit brought by a candidate dropped ahead of the last federal election.

A B.C. judge has ruled that the party’s news release announcing it was dropping John Shavluk is protected under a new defence called “responsible communication.”

The B.C. Supreme Court decision is one of the first to test the new defence outlined last December by the Supreme Court of Canada.

The high court ruling broadened the ability of journalists, bloggers and others to shield themselves from libel lawsuits and was heralded as a major victory for free speech.

Shavluk was dumped as the Green candidate in a Vancouver-area riding shortly before the 2008 election because, the party explained in a news release, online comments he had made two years earlier “could be construed as anti-Semitic.”

The posting, in which Shavluk touches on a range of topics from drug laws to 9-11 conspiracy theories, refers to the World Trade Center as the “shoddily built Jewish world bank headquarters.”

Shavluk has maintained that the comments were not anti-Semitic and that he was quoting an Australian commentator.

Thursday’s judgment notes the online posting was dug up and reposted on a political blog in September 2008 and, a day later, the party was contacted by a reporter preparing a story about Shavluk’s candidacy.

Leader Elizabeth May testified that party officials discussed the matter and the decision was made to drop Shavluk as a Green candidate.

May told the court that she initially held off issuing the news release about the matter while she tried to contact Shavluk.

She said she left a message but did not hear back, and later that evening the party issued the news release.

Shavluk complained to the party’s appeal committee, which upheld the decision to remove him.

He then sued both May and the party for libel over the news release and a subsequent media interview, alleging they knew he was not anti-Semitic, made the comments out of malice and were engaged in a conspiracy against him.

Judge Carol Ross concluded the party’s comments were indeed defamatory and couldn’t be defended as either fact or fair comment.

But Ross ruled the party met the requirements for the responsible communication defence because the issue was one of public interest and the party took steps to seek out Shavluk’s explanation, even if they didn’t reach him before the release went out.

“The publications at issue were in relation to a matter of public interest. The suitability of a candidate for public office during a federal election is clearly such a matter,” Ross wrote in her decision, posted on the court’s website.

She noted that the press was about to publish an article.

“The matter was urgent and the timetable was not in the control of the defendants.”

Ross also said the statements are protected under another defence known as qualified privilege, because an election was imminent and the party was justified in explaining why they were removing Shavluk as a candidate.

Shavluk said Thursday he was disappointed about the decision, and reiterated that he was merely repeating the words of an Australian filmmaker.

“The whole letter was about law enforcement and prohibition and these American cops,” Shavluk said in an interview. “The truth and proof don’t matter.”

He described the responsible communication defence as “obscure case law” that should only apply to reporters.

“It only came out in December, and it only applies to journalists,” he said.

But Vancouver-based media lawyer Michael Skene said the Supreme Court of Canada deliberately used the words “responsible communication” to describe the new libel defence rather than “responsible journalism,” as its called in the United Kingdom, so it wouldn’t apply to just reporters.

“If you broaden it to all communication, it’s explicit that it’s very clear that you’re protecting not just journalistic speech, but all speech,” Skene said in an interview.

Organizations: Supreme Court of Canada, B.C. Supreme Court, World Trade Center

Geographic location: VANCOUVER, B.C., United Kingdom

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