Sunday, December 30, 2012

Distinguishing Political Rhetoric from Fact

The Ontario Superior Court of Justice's home page.
In a recent Canadian libel case (at the Ontario, Canada, Superior Court), Mr. Justice John Macdonald made a decision based on the ability of the public to distinguish political rhetoric from facts. The case involves plaintiff, Mr. George Foulidis who sues defendant, Mr. Robert Ford (former Toronto mayor) for libel in regard to an interview by Mr. Ford (published by the Toronto Sun on August 12, 2010), in which Mr. Ford as a mayoral candidate criticized the 20 year contract between Tugg Inc. and the City of Toronto and inferred "corruption" without being able to factual support the inference. Or in Mr. Ford's words:

"Q: Rob, you...I think I spoke with you yesterday, there are a number of things being rammed through at the next City Council meeting, um, you know, you know I’ve written about the Foulidis contract. There are a number of other things…leasing deals which I’ll be writing about. All kinds of um, things. Um, first of all how do you feel about that and second of all, as Mayor, I mean is it possible for you to undo any of this stuff, after the fact?

Rob: Absolutely. Absolutely it is. Let me ask you one question, how did David Miller get elected?

Q: On a bridge. On a bridge.

Rob Ford: That’s exactly how he got it. The $2 bridge that ended up costing millions. And so, he said that you can undo anything that’s been done.

Q: The Foulidis deal?

Rob Ford: What…On the Tuggs?

Q: Yes.

Rob Ford: Absolutely. It’s in camera, obviously, its confidential, I wish that you guys knew what happened in camera, which a lot of you do, obviously, but these in camera meetings, there’s more corruption and skullduggery going on in there than I’ve ever seen in my life. And…and if Tuggs isn’t, I don’t know what is. And I can’t accuse anyone, or I can’t pinpoint it, but why do we have to go in camera on a Tuggs deal?

Rob Ford: So, I wish, I wish I could tell you the stuff that’s happened behind closed doors. The things the media does not know.

Rob Ford: So a lot of these issues…sorry Andy…A lot these issues don’t have to go in camera. And if that Tuggs deal doesn’t stink to high heaven I…I.

Doug Ford: …How about a 20 year untendered bid at a lower cost and then you find out the owner’s contributing to the guys who are voting for him.

Rob Ford: That’s illegal. You call the police in to investigate that" (Foulidis v. Ford, 2012 ONSC 7189). 

In the determination of libel, Justice Macdonald examines whether or not Mr. Ford's published interview would be perceived by a reasonable person as damaging to Mr. Foulidis' personal well-being, reputation, business interests etc.

Justice Macdonald's reasoning is as follows:

"Reasonable persons generally would consider the whole of an article in order to form any conclusions. Reasonable persons reading the article in issue and the page 4 headline would have been struck by the use of the work “corruption”. It is a serious issue when spoken about governmental processes by a member of the government in issue. It would have been an alarming word in the circumstances, and reasonable persons reading it would have scrutinized the article to see whether there was any substance to it. They would have looked to see whether there was any basis in fact put forward for the assertion of corruption, whether any such basis in fact supported the assertion of corruption, and whether the person asserting corruption expressed any limitations or disclaimers which limited, modified or clarified the inherent seriousness of the assertion of corruption. Reasonable persons would have read this article in this way so they could decide for themselves what to make of Mr. Ford’s corruption assertion. When I speak of the reasonable person or the reasonable reader in the rest of these reasons, I speak of them acting in the way I have described" (Foulidis v. Ford, 2012 ONSC 7189).

Canadian libel law is limited by the reasonable person criteria. Yes, it is clear that a reasonable person would understand that Mr. Ford's statements were his unsupported opinion or suspicion rather than a statement of fact. However, what about less reasonable persons who are unable to process Mr. Ford's statements as a comprehensive and sound whole? What about reasonable persons who only scanned Mr. Ford's statements, and thereby missing the whole thrust of his statements? What about reasonable persons whose thoughts were clouded by their partisanship so that they were unable to understand the whole meaning of his statements? What percentage of the person's who read Mr. Ford's interview were in the "reasonable" frame of mind which Justice Macdonald refers to, and how many of the persons were not?

Justice Macdonald's reasonable person standard appears more based on legal theory rather than reality. If the Canadian legal system assumes that everyone is a reasonable person or that it only weighs the perception of a reasonable person or common sense view then there would be almost no regulation of political speech. Interestingly, Canadian media laws follow this loose framework, with minimal or no regulation of political speech in terms of providing sources for information and considering the impact on less reasonable persons or reasonable persons not functioning in the moment at the reasonable standard. Political candidates and parties, media corporations, and citizens are free to influence and manipulate public opinion within the extreme of hate speech. A more advanced democracy, like France, takes the view that not every citizen is in the same reasonable state and that political content regulation and accountability are necessary to ensure that the electorate is fully informed of its electoral choices.

Turning back to Justice Macdonald, it appears that there is reason to overturn his decision on grounds that not everyone who read Mr. Ford's interview were in Justice Macdonald's ideal reasonable state of mind. The degree of damages would be contingent on determining objectively the percentage of persons in the reasonable state and percentage not in the reasonable state. As is, Justice Macdonald's decision allows for political rhetoric and the resulting misinformed public.

Justice Macdonald's Decision

FDA Reports, Articles on France

FDA Reports, Articles on Canada

Mr. Stephen Garvey, Foundation for Democratic Advancement, Executive Director

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