Andrew Weaver, who holds the Canada Research Chair at the University of Victoria's School of Earth and Ocean Sciences, launched a defamation action on Monday, naming the National Post and some of its employees and writers as defendants. Dr. Weaver is perhaps Canada's leading climatologist and has written extensively on global warming. The National Post's editorial position might be described as that of a warming denier, and the articles of primary concern in the lawsuit were clearly hostile to Dr. Weaver's position.
I won't take you through the material here: you can examine the statement of claim for yourself, because it's available [PDF] on the Google Docs account of desmogblog. A Google search for [site:nationalpost.com weaver] will bring up most of the material identified in the claim.
Dr. Weaver also identifies as defamatory a number of statements made by commenters online on the National Post sites. (What a depressing exercise it is to read the comments.) And the stories were picked up by numerous blogs where excerpts from them are repeated; in this connection, the statement of claim points out that the National Post encourages readers to share the paper's stories with others.
What has caught the eye of the media is not the substance of the claim or even the crucial debate that lies behind it, but rather one portion of the plaintiff's claim for relief (para. i on p. 41), wherein he seeks:
an Order requiring the defendants to assist the plaintiff in obtaining the removal of electronic copies of the defamatory expression and injurious falsehoods complained of in this statement of claim: (i) from Internet Search engine caches; (ii) from any other electronic database where they are accessible; and (iii) from other Intemet websites operated by third parties, whether or not those third parties were originally expressly or impliedly authorized by the defendants or one or more of them to republish the aforesaid defamatory expression and injurious falsehoods;
The Toronto Star quotes two significant media lawyers offering their opinion that were this relief granted it would impose significant and new burdens on newspapers, which have limited means of controlling where their stories wind up. For myself, I'd say that it's a fairly sensible and reasonable claim, particularly when the original publisher has not merely allowed but encouraged propagation. Note, the request is not for an order requiring the defendant to ensure the eradication of the fruit of a poisonous tree, so to speak. All that is requested is that the defendant be "required to assist the plaintiff" in the endeavour to get libellous material removed.
Moreover, the hunt would not be for wisps of paper tacked to random telephone poles, but rather for material that is meant to be discoverable on the web by search engines. The National Post is a big organization with, one hopes and expects, a sophisticated IT department likely better situated than a personal plaintiff to know the ropes of the internet and to be able to pull the right ones. And should they have any difficulty framing the right search, I'm sure we could find librarians to help them.
I like how you have framed this discussion, Simon. I imagine Weaver at home doggedly spending hours on the Sisyphean task of stopping the tides of blogs and search engines from propagating the negative opinions, finally coming to the conclusion that a lawsuit would be the only way to possibly stop it.
Certainly an interesting remedy, involving third-parties that relied heavily on the veracity of the original source. An order seeking to compel NP to force the third-parties to remove it from their sites does seem rather novel, and I'm not sure how the court would enforce such an order, especially if the website operator and author were situated outside of Canada.
I thought the requested relief of a transfer to the plaintiff of all copyright in the purportedly defamatory articles was a nice touch.