As someone who was threatened with a spurious (in my opinion) defamation lawsuit some months ago, by Myna Wallin and Halli Villegas, current coordinators of the Toronto Small Press Book Fair, this was of particular interest to me. H&M didn't like my criticism of how they ran the fall fair, and of their reaction to criticism from the community, and they didn't like my suggestion, addressed to them and their board and a few past fair coordinators, that they ought to step down. They hired a lawyer to threaten me with various financial penalties if I didn't erase his clients' names from my blog, retract various (unspecified) statements I'd made, and stop defaming his clients.
I erased nothing from my blog, retracted nothing, and had no problem stopping defaming his clients, because I don't believe I had ever defamed them in the first place. As someone wrote on some other blog or listserv, simply saying that someone has defamed you doesn't make it so.
But I — and scores of other members of the small-press community — were deeply angered that people receiving public money to run a fair devoted to literature and free expression would threaten another writer with such a suit.
So, as much I still wouldn't be able to afford a swing through the courts, I was encouraged to see Kirk Makin's article in the June 28 Globe & Mail, "9-0 ruling modernizes defence of fair comment: Controversial radio host Mair didn't defame Christian-values advocate on book-banning, court says, setting terms for 'honest belief'." Here are some pertinent extracts:
The media should not live in constant fear of facing a libel suit every time a provocative commentary is published or broadcast, the Supreme Court of Canada said yesterday in a major ruling won by controversial Vancouver radio broadcaster Rafe Mair.
In a 9-0 decision that modernizes the defence of fair comment, the court found that Mr. Mair did not defame Christian-values advocate Kari Simpson when he denounced her stand on a book-banning controversy.
"An individual's reputation is not to be treated as regrettable but unavoidable roadkill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to 'chill' freewheeling debate on matters of public interest," Mr. Justice Ian Binnie said.
Judge Binnie said that the key to a defence of honest belief - particularly in an era when extravagant overstatement is common - should lie in whether an honest person could have held the same opinion.
Brian MacLeod Rogers, a lawyer who represented a coalition of media organizations in the appeal, said that the ruling "clarifies and strengthens a defence that had fallen into murky depths and had become too unreliable to be counted on when most needed."
Judge Binnie expressed a concern that issues of public interest could go unreported "because publishers fear the ballooning cost and disruption of defending a defamation action. ... Public controversy can be a rough trade, and the law needs to accommodate its requirements."
The legal tests the court set out to determine "honest belief" include:
The comment must be on a matter of public interest.
It must be based on fact.
Although it can include inferences of fact, the comment must be recognizable as comment.
It must be capable of satisfying the question: Could any person honestly express that opinion on the proved facts?
What I was originally going to write here today was in response to an article that appeared in the National Post the day of the fair. Here's what really made me sigh in despair: "Says Villegas: 'I don't know if we actually could do anything differently than we did.'"
Jean-Paul Sartre would be shaking his head. We are different from armadillos and chimps in that we do have the power — in fact, the responsibility — to make our own choices. Here are some things they could have done differently:
• not attacked me personally when I criticized their running of the fair and suggested ways to improve it
• not taken my criticism as a personal attack
• formed a board that didn't consist simply of themselves and three close associates, but one inclusive enough to draw in at least one or two people who had a deep history of the fair, such as Beth Follett or Maggie Helwig
• chosen not to hire a lawyer to threaten me with a defamation suit
• held an open meeting with the small-press community when they realized it wasn't just me who was unhappy
• invited me and other members of their constituency to speak before the board
• withdrawn their accusations of defamation, as I requested, when there was talk of bringing in a mediator or conciliator (I refused to go into any discussions with a legal threat hanging over my head)
• thanked me publicly for all the valuable suggestions I made on my blog, given that they obviously used those suggestions as a template when organizing the next fair
And, perhaps most simply, after they'd read my initial blog entry, they could have said: "Thanks for the input, Stuart. We'll take it into consideration for the next fair." And that would have been that.
We're all human, and we all sometimes respond rashly to things said, or don't stop to think before we speak, or take things personally that weren't meant personally. But along the way, there are opportunities to try to right our wrongs, admit our shortcomings, reach out and communicate in a sincere fashion. I speak as someone who has fucked up deeply at times, and when I felt I was wrong, I've done my best to admit it and to make amends.
I don't know how the spring fair went. I wasn't there, and many other long-time participants chose not to go. One who did turn up said he regretted it. Many of those who have shopped at the fair for years chose not to go. It's a profound loss for me as a writer and publisher, not to mention as a founder of the event, but staying away from this fair was a choice I made on principle. It's a tough enough life being a Canadian writer; we're already under implicit attack from so many other facets of the society we live in.
I don't think I have anything further to say on the topic.
So, on to other things.
Over and out.
Crickets. Stoney silence.
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