The Burden of Proof and Bloggers' Beliefs

By Charles Moffat - September 2010.

CANADA/TECHNOLOGY - This is really more of a civil rights topic than a technological one, but bear with me.

Lilith News, as you may have heard, is being sued for $2 million for defamation by a Torontonian celebrity / crook whom we believe to have conducted a number of crimes and continues to remain at large because of a lack of proof. (Due to the lawsuit we are refraining from saying his name and what crimes he's been accused of because we've agreed to the possibility of an injunction, but only on the condition that the lawsuit is dropped.)

Indeed the burden of proof is a big theme and problem with the justice system. In the above case Ontario Superior Court Justice John Hamilton expressed his belief that the crook in question was "probably" guilty, but admitted there wasn't enough proof to convict him and so was forced to acquit him.

Just because he is acquitted doesn't mean he isn't "guilty before God" or however you want to express it and that he won't suffer bad karma from committing the illegal and immoral acts that he managed to get away with.

The problem however is when we, I mean bloggers, choose to express our opinions and beliefs about whether a person is guilty... and how we choose to express that belief.

I mean we're not newspapers or TV journalists. We're just bloggers and we're expected to express our opinion. Its whole part and parcel of the whole "blogger thing", its what WE DO. We express and assert our beliefs.

And lest we forget what the word BLOG actually is short for: web log. Its essentially a journal, a diary, a scrapbook for our thoughts and opinions. In the case of the Lilith News it is essentially news clippings which we find interesting and then we add our own opinions, beliefs and assertions to it.

Lets contrast and compare...

If we say "Judge Johnson found Tom Smith guilty on charges of conspiracy." that means we are reporting a fact.

If we say "Tom Smith is guilty and deserves to rot in prison." then we are expressing an opinion.

Its not that hard to tell the difference.

Defamation laws however are tricky things. Defamation covers any communication (including blogs) that tends to lower the esteem of the subject in the minds of ordinary members of the public. To sue for defamation all they have to prove is intent to defame and malice.

There are several defenses however:

Justification / The Truth - Its not defamation if its true.

Fair Comment - Ie. An opinion that is capable of being held by anyone, void of malice.

Responsible Communication - Rarely used, Responsible Communication refers to instances where people have the right to voice their freedom of speech in an effort to warn/protect the public and the public's interest. Ie. Warning the general public that there is a criminal on the loose and he hasn't been convicted yet.

Privilege - Anyone in a position of authority or trust. Ie. A judge could comment on the guilt of the person, even though the accused has been acquitted due to not enough evidence.

Already Defamed - The person or company in question is already infamous and the subject of public ridicule. Ie. They have 9 different Facebook groups making fun of them and lots of other websites making the same accusations.

There is also the matter of the way a person says it. "Seems to", "appears to be", "allegedly", "Its my opinion that", "according to" and so on. These are words journalists are trained to use so that their newspaper won't get sued.

Except the problem with the technology of blogs and blogging is that ANYONE could do it. An intelligent 5-year-old child could commit defamation by telling everyone online that his kindergarden teacher is "a big meanie". There is no training required, just the ability to type and spell. In an effort to prevent frivolous lawsuits the State needs to make it clear that bloggers are going to state their opinions... and people, in particular celebrities, are going to need to firm up their backbone and get used to people posting comments about them. They can't go around suing everyone willy-nilly, its a complete waste of time.

Worse... when someone does sue someone publicly they only make the matter worse, because then its becomes news and the mass media (and hordes of bloggers) starts commenting on the case. Trying to stifle one blogger's beliefs only unleashes a whole army of other people eager to voice their own beliefs and comment on the lawsuit.

These cases aren't going to go away until people realize that opinions have a right to be heard, even if there isn't any proof to back up the opinion.

"The genie is out of the bottle and there is no putting it back in."