The Fading Line between Free Speech and Libel

Legal guru says blurry boundaries and the rise of the Internet is making his craft ‘utterly unworkable’

By Jacquie McNish
The Globe and Mail, July 2, 2008

His client, Maclean’s, secured a big win last week when the Canadian Human Rights Commission dismissed a complaint against the magazine from Muslim critics. Still, famed libel lawyer Julian Porter is in no mood to celebrate.

Yes, the federal commission is the second agency after an Ontario tribunal to dismiss charges from the Canadian Islamic Congress that a 2006 article by Mark Steyn exposed Muslims to hatred. And yes, legal experts are betting that a pending decision from a third tribunal in British Columbia will reach a similar conclusion.

And yet, despite a string of winning battles, Mr. Porter, 71, has the air of a glum general. Seated in a small office atop a bank tower in downtown Toronto, surrounded by stacks of books, the lean, patrician lawyer absently rubs his wooden desk as if trying to erase a blemish.

The thing is, he explains, libel law is under siege.

After four decades of suing or defending prominent authors, journalists and businessmen entangled in some of Canada’s most memorable libel cases, Mr. Porter warns that it is getting harder to defend reputations or preserve freedom of speech — rights honed over centuries of case law.

One culprit, he said, is quasi-judicial bodies such as human rights tribunals, which are operating far “beyond their jurisdiction.”

When these agencies investigate slander and defamation charges, he argues, they operate outside the bounds of civil court procedure. Defendants cannot rely on traditional libel defences such as truth, fair comment or good intent.

At human rights hearings, he said, cases can be clogged with witnesses who are allowed to interpret how articles, such as that written by Mr. Steyn, perpetuate hatred.

“It becomes a zoo, it is utterly unworkable,” he said.

A more insidious threat is the Internet, Mr. Porter argues. Anonymous websites and blogs are havens of defamation, slander and libel because their owners and authors are difficult to trace or hold accountable.

The result is a strange libel universe comprised of two worlds that play by very different sets of rules.

In traditional print and broadcast media, publishing and entertainment companies publish corrections or pay damages when courts find they have wrongfully damaged reputations. In what Mr. Porter calls the legal netherworld, websites, blogs and a variety of digital voices operate with virtual impunity. Many of the voices are difficult to trace. When they are revealed, most have slim financial resources to compensate defamed parties.

“The slander is out there on the Web and you can’t put it back in a box,” he said. “You don’t know where the line is now. You don’t have access to someone with money who cares or is responsible about what they say… There just isn’t anyone around who is accountable for the words,” he said.

The boundaries were as clear as blue lines in a hockey rink when Mr. Porter began his career in the early 1960s at the Toronto firm now known as Fasken Martineau DuMoulin LLP. Back then, Mr. Porter was an aspiring articling student who opted for an office in what was once a cloak room because it was next door to the office of litigation heavyweight Walter Williston.

The small perch allowed Mr. Porter to track potential assignments by watching a parade of clients into Mr. Williston’s office. When he spied Toe Blake coming down the hall in 1963, he followed the Montreal Canadiens coach into the litigator’s office. After a recent team loss, Mr. Blake had complained to reporters that referee Eddie Powers had called the game as if he had a bet on the outcome. Mr. Powers responded by suing Mr. Blake for libel.

Unfamiliar with libel law, Mr. Williston ordered the young Mr. Porter to the library at Osgoode Hall to spend weeks boning up on libel law. What Mr. Porter found among the legal stacks was an area of law that had been mostly overlooked in Canada and appealed to one of his first loves: words.

“The great advantage of libel law is that it deals with words. Words are subtle. To be paid to read words has been the most wonderful gift,” he said.

When Mr. Porter viewed Mr. Blake’s words in the context of existing libel case law, he concluded that Mr. Powers had a strong case.

“No one deserves to have things like that said about you,” he says today. Weeks later, the matter was privately settled with an undisclosed payment to the referee.

Eventually, Mr. Porter became enough of a libel specialist to launch his own practice. His tactics are almost as famous as his cases. In 1984, a jury ordered CTV to pay a record $1.4-million in damages to an Ontario quarry owner after Mr. Porter pled, wept and rasped in a dramatic closing argument that his client deserved to “die with his name cleared of this infamy.” (The damages were later reduced on appeal.)

When a Toronto socialite threatened to sue author Peter Newman and his publisher, McClelland & Stewart Ltd., in 1981 for an unflattering reference in a book, Mr. Porter derailed the lawsuit by proposing that booksellers across Canada delete the offending passage with black felt pens.

In 2004, Mr. Porter successfully defended heirs of Lucy Maud Montgomery against a libel action from filmmaker Kevin Sullivan. Mr. Porter subjected Mr. Sullivan to a bruising examination after which the lawyer remarked in court, “liar, liar, your pants are on fire.”

After more than 40 years of practice, Mr. Porter dismisses any suggestion that he may soon retire. He is still preoccupied with a number of cases, including the human rights challenge faced by Maclean’s in British Columbia. Although he wants the magazine to win, part of him wishes that the commission rules against his client so that he can appeal the case to the Supreme Court.

“If this matter goes upstairs, the court would find that the Human Rights Act is too broad and the commissions shouldn’t be considering these type of cases,” he said.