Climate Scientist Strikes Back: Libel, Canada, and the Meaning of Weaver vs. National Post

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Canada’s Scales of Justice … Avoid ‘falsehoods’? Or ‘chilling’?

Andrew Weaver, a prominent Canadian climatologist and IPCC contributor, raised eyebrows across the climate media world recently when he filed a libel suit against a right-leaning newspaper for its tough criticisms.

In late April, Weaver filed a complaint in the Supreme Court of British Columbia contending that the National Post was guilty of libel in a series of recent articles attacking him and his work.

The articles contain “grossly irresponsible falsehoods that have gone viral on the Internet,” and they “poison” the debate over climate change, Weaver asserted in a statement at the time the suit was filed. (Download the complaint here.)

It is certainly one of the strongest salvos fired back by any member of the international scientific community against a widespread barrage of skepticism that has rained down since the hacked e-mails fiasco at the University of East Anglia first broke late last year.

The lawsuit goes after the Post‘s editor and the writers of the articles, published between December 2009 and February of this year, and also against various online posters who in online comments added negative characterizations of Weaver’s work.

Weaver, chair of Canada Research in Climate Modeling and Analysis at the University of Victoria, also asks for court help in getting the articles removed from a list of sites around the Internet where they have been republished, and from news databases such as Lexis-Nexis and Factiva.

Weaver: Sit Back? … ‘Libels on the Internet Forever’

“If I sit back and do nothing to clear my name, these libels will stay on the Internet forever,” he said in a statement. “They’ll poison the factual record, misleading people who are looking for reliable scientific information about global warming.”

The Post articles attack Weaver on many fronts, from the general to the particular: they call him “Canada’s warmist spinner-in-chief”; they say that he claims that the fossil-fuel industry may be responsible for break-ins at his research office; they take issue with his defense of the iconic “hockey stick” graph of global temperatures for the past 1,000 years; and they generally impute to Weaver various views that he claims he doesn’t have, such as the notion that he is now rejecting IPCC.

Given the broad First Amendment protections in the U.S., Weaver’s fight may be hard to conceive of for American journalists and scientists. That’s not the case north of the border, though.

An impact on Web beyond Canada’s?

“Libel law in Canada is often seen as the most regressive in the English speaking world today,” Bill Kovarik, professor of communication at Radford University and a 2009 media fellow at the University of Western Ontario, told The Yale Forum. “A case like this, based only on political criticism, would likely be dismissed on a motion for summary judgment in the U.S. In Canada, the burden of proof is on the defendant, not the plaintiff, so the National Post (one of the most conservative papers in Canada) is going to have to prove their claims are either true or fair comment, and this will be difficult in the Canadian system.”

Online Commenters – Fight the ‘Good Fight’ or ‘Chilling’ Impact?

Popular sentiment on the Internet is, predictably, all over the map, with some saying that Weaver is fighting the good fight, others saying his lawsuit could have a chilling effect on robust debate.

Just a couple of examples illustrate the range of opinion.

Discover blogger Phil Plait wrote that he was “glad” Weaver is pushing back, especially given all of the attacks on scientists in recent months. “This attack on the reputations of scientists is nefarious; reputation is extremely important when it comes to a scientist’s career,” Plait wrote.

“Getting grants, invitations to talks, even being taken seriously, all can rest on the respect they get by other scientists and the public.”

In contrast, some media watchers in Canada are not at all eager to see the suit succeed, reports The Star of Toronto. The newspaper reports that the litigation could force news organizations to censor content and police comment threads and social networking sites. One media lawyer said it would create an “impossible burden.”

The U.K. Guardian also reports that the case carries with it “potentially huge consequences for online publishers.”

Toronto-based journalist Sharon Oosthoek, a member of the Canadian Science Writers’ Association, said she realizes that Canada’s libel laws “have been unfavorably compared to those in the U.S.,” but she nevertheless endorses the Canadian system.

“As a journalist, I’m of course a defender of free speech, but I can’t say I’m convinced that Canada should change its libel laws accordingly,” Oosthoek told The Yale Forum. “I would argue that getting it right is a fundamental pillar of good journalism, especially in climate science journalism where so much is at stake. While journalists are human and may not always get everything right, I believe most of us genuinely want to publish only what is true, and our libel law reflects that sentiment.”

Jonathan Zittrain, professor at Harvard Law School and a co-founder of the Berkman Center for Internet & Society, notes that the lawsuit has a certain irony.

“I suppose (Weaver) will be battling the Streisand Effect,” Zittrain told The Yale Forum, referring to the tendency on the Internet for information to proliferate and be publicized more widely when threats of censorship arise. “But he may think it helpful to have a court judgment that he’s been libeled – which is a way of more authoritatively setting the record straight. In that case it may be less about trying to take down the bad speech than about establishing definitive ‘curative’ speech with which to answer it.”

An Impact on Web Discourse Beyond Canada?

As Zittrain suggests, carrying out censorship in the Internet age – even legally valid censorship of libelous content – remains problematic, given the global nature of the Web. There are questions about how one could absolutely suppress anything, short of using China-like draconian measures. The Post articles in question, for example, have proliferated to sites and domains beyond the reach of the Canadian authorities.

But there is another side to that issue.

“Given the borderless nature of the Internet, libel plaintiffs these days can get away with a fair amount of forum shopping for the most favorable jurisdiction,” Sarah Hinchliff Pearson, Residential Fellow, Center for Internet & Society, Stanford Law School, told The Yale Forum.

“If they are able to bring their cases in courts with more lenient libel standards (such as Canada vs. the U.S.) and get an injunction to have the publisher help take down all reproductions of the alleged libel, the implication for publishers would be profound,” Pearson wrote in an e-mail interview. “This would mean that the countries with the strongest libel laws could effectively police the Internet, regardless of the legal standards in other jurisdictions.”

John Wihbey

A regular contributor to The Yale Forum, John Wihbey is an editor and researcher at the John F. Kennedy School of Government at Harvard. (E-mail: johnwihbey@gmail.com, Twitter: @wihbey)
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8 Responses to Climate Scientist Strikes Back: Libel, Canada, and the Meaning of Weaver vs. National Post

  1. Greg says:

    Thanks for an interesting view on this issue. Having read several of the Canadian mainstream press reports about Mr. Weaver’s suit, and the accompanying commentary, I’m entertained by the way several points about this case continue to elude analysts, and Mr. Wihbey’s article, while thorough, is no different.

    So here’s another way to look at this:

    Yes, this is about the politics of climate change. No, it’s not about “Climategate”, or climate science in general. What it is about is the ability of people to defend themselves against false statements attributed to them in the media by other parties, whatever their side in a particular argument.

    Calling the NP’s statements about Mr. Weaver “tough criticisms” is nonsensical, especially when you do say that the NP is being asked to defend itself for “grossly irresponsible falsehoods…” in the next paragraph.

    This is also not about Canadian libel law, and it is not about “forum shopping”, whether or not the internet is of a “borderless nature”. I don’t mean to belittle the other valid points in the article, but isn’t it simply the case that, given that Mr. Weaver is a Canadian, working in Canada, and The National Post is a Canadian paper, that the most likely venue for this suit would be — how can I put this more clearly? — in Canada?

    In addition to that, may I speculate that Canada is also the jurisdiction in which Mr. Weaver receives his funding, and that one of the specific remedies that climate change deniers have repeatedly called for is the removal of funding from scientists whose work they find disagreeable.

    Finally, I think this quote from Steve Reuland in this forum
    http://scienceblogs.com/deltoid/2010/04/scientist_fights_back_against.php

    really nails the larger issue:

    “These are not merely attacks on a particular scientific theory, they’re attacks on the institutions and **people** who conduct science, and on the legitimacy of the entire scientific enterprise in our society. These types of allegations can be leveled against any scientist for any reason. It is an attempt to transform science from an objective and reliable source of knowledge to something that can be safely ignored if it doesn’t fit your ideological prejudice.” [emphasis mine]

  2. John Wihbey says:

    Thanks, Greg, for the good feedback. I think you are objecting to the “step back” nature of several passages here. Fair enough. But I do think it’s worth it to see Weaver’s suit in wider context, particularly because his accompanying statement invites it. I’ll quote it again: “They’ll poison the factual record, misleading people who are looking for reliable scientific information about global warming.” Weaver, whose IPCC work makes him a target, clearly is voicing concern for the broader populace and for science. I used the phrase “tough criticisms” because I’m trying not to take sides in the issue, and I thought it was reasonably neutral language — one person’s tough criticism being another’s libel. “Grossly irresponsible falsehoods” is the accusation — the fact has yet to be determined by the court. You are absolutely right that Mr. Weaver is not in this instance “forum shopping,” but that was not my point, nor was it the point of the person I quoted. I was merely looking at the future potential implication, albeit hypothetical. Though “forum shopping” does not apply here, it has in other instances, in other cases, according to my source. And so the point is: Who knows what door this opens, if this succeeds? I’m not coming down either way — it’s just an interesting angle. In any case, I really appreciated your comments.

  3. Deep Climate says:

    Surprisingly, this is the first time the Yale Forum has ever mentioned the National Post, according to the search engine.

    The Post is not just a “right-wing newspaper” dishing out “tough criticism” of climate scientists. Rather, it has been for the past ten years arguably the source of more propaganda and disinformation on climate science than any other print media outlet.

    http://deepclimate.org/tag/national-post/

    Read some of those and weep for the state of journalism, as falsehoods are repeated over and over with absolutely no consequences or accountability.

    And get a grip.

  4. Craig Thomas says:

    I’m afraid I cannot accept John’s justification for labelling the National Post’s emissions as being “tough criticisms”. You do not need to any court to determine whether the NP has printed any falsehoods or not, all you need is to do some very basic journalistic research. What the court will be deciding is whether those falsehoods amount to actual *libel* or not. In the circumstances, your prevarication over the reality of the NP’s transgressions against truth in reporting amounts to you taking their side.
    As for final segment about forum-shopping in Canada, it was either a completely gratuitous swipe at the legitimacy of this libel action, or it was a complete non-sequitur. Given the pressures of journalism, I fail to understand why a non-sequitur would fail to be edited from an article.
    Once again we see employed here the fake “two sides” approach which journalists are using to give a false impression that there is some sort of valid discourse coming from the denialists and the media organs which propagate their lies and distortions.

  5. Greg says:

    John, thanks for taking the time to answer my comments. I see what you mean about the interesting angles.

    I guess my original expectation was of a more nuanced discussion or analysis of the Climate Change & the Media (see “the Yale forum on”) aspect of this story.

    Regarding your comment about Mr. Weaver’s statement, “They’ll poison the factual record…”, I think I see what you’re getting at — this is just one tactic in a battle to see who gets to write the authoritative conclusion to the climate change question. (?) Frankly, I don’t believe that’s Weaver’s intent. On the contrary, I think he’s asking that the public record reflect the current consensus in general, which is that human-caused climate change is occurring. Do we not accept that there are some well-substantiated scientific facts underlying the debate?

    But unless you’re more familiar with the science than I am (not very, I’ll admit), and can point to specific instances where denialist claims have been proved and supported by peer review, I think you’ll find that the NP and their ilk are simply repeating the views of various (energy) industry propagandists. (Exxon ALONE spends tens of millions of dollars funding anti-climate change activities: http://www.sourcewatch.org/index.php?title=Exxon)

    Since, in my reading of the science, his statement is a fair summary of denialist objectives, I don’t see any grounds for criticising Mr. Weaver. Again, the suit is about “grossly irresponsible falsehoods” that NP published as true, which are being and will be used to undermine the actual science behind this issue.

  6. Deep Climate says:

    I would add to Greg’s last comment that there is strong evidence that National Post editor Terence Corcoran has actively co-operated with PR disinformation emanating from ex-APCO operative Tom Harris.


    The National Post’s coverage of the UNFCCC (United Nations Framework Convention on Climate Chamge) Bali conference [in 2007] was not quite as elaborate, but did feature one particularly disturbing instance of contrarian boosterism, the infamous Bali open letter.

    The full story, told here for the first time, shows how editor and skeptic cheerleader Terence Corcoran crossed the line from opinionated commentary to active participation in a shadowy public relations stunt aimed at scuttling the Bali negotiations. And complaisant editor-in-chief Douglas Kelly went along with the charade, not even bothering to force Corcoran to reveal the key involvement of longtime disinformation specialist Tom Harris and his “astroturf” Natural Resources Stewardship Project.

    The “full story” at:
    http://deepclimate.org/2009/12/10/bali-2007-revisited/

    For additional background on Harris and Corcoran, see:

    http://deepclimate.org/2009/12/08/in-the-beginning-the-national-post-terence-corcoran-and-tom-harris/

  7. Deep Climate says:

    The latest instalment in the relentless National Post smear campaign against Michael Mann and other climate scientists.

    http://deepclimate.org/2010/07/09/terence-corcoran-whopper-manns-hockey-stick/


    Terence Corcoran may well have just unleashed the National Post’s biggest whopper yet about climate science – and that’s saying something.

    Corcoran’s commentary on the recent Russell “climategate” email review lays one error-laden defamation on top of another, as he attempts to demonstrate that the report “provides plenty of evidence that climate science has been and remains an uncertain shambles”. Oh, and apparently the review “portrays climate science as a field filled with uncertainty, debate, lack of openness, data hoarding and ill-will.”

    Along the way, Corcoran even manages to confuse a little known Phil Jones graphic with Michael Mann’s “hockey stick” millenial temperature reconstruction. This leads to the astonishing (and entirely wrong) accusation that the hockey stick creators “eliminated some of the data from 1960 forward … and then spliced on actual temperature data”. Yet neither the “hockey stick” graph (the real one) nor the associated Mann et al study are mentioned in the report at all!

    Now Corcoran holds out the hope that bogus accusations might even lead to criminal trials for climate scientists. But, apparently, well-connected right-wing editors and columnists can spew falsehood after falsehood, and smear upon smear, without any consequences whatsoever.

    That’s the real scandal of “Climategate”.

    When is the Yale Forum going rouse itself and cover the real issues here? The silence is deafening.

  8. Kelly Manning says:

    The National Post should take this quite seriously.

    A few seconds of searching reveals that Roger D. McConchie (and David A. Potts) literally wrote the book on “Canadian Libel and Slander Actions”. http://www.irwinlaw.com/store/product/85/canadian-libel-and-slander-actions

    McConchie law corporation also prepared the statement of defense for Dr, Dan Johnson when 8 year Geography professor Tim Ball sued Dr. Johnson and 4 Calgary Herald editors for $325,000, alleging defamation.

    The responses from McConchie, and from the Calgary Herald’s advocates, were so effective, and so devastating, that former Geography Professor Ball gave up.

    http://www.desmogblog.com/sites/beta.desmogblog.com/files/TBall%20statement%20of%20claim.pdf

    http://www.desmogblog.com/sites/beta.desmogblog.com/files/Johnson%20statement%20of%20defence.pdf

    http://www.desmogblog.com/sites/beta.desmogblog.com/files/Calgary%20Herald%20Statement%20of%20Defence.pdf

    It will be interesting to see what the National Post has to say as a Statement of Defense.

    I am puzzled by claims that the Take Down Order request for the libelous articles has no precedent.

    It seems similar to DMCA Take Down orders and to the Order issued by Justice Halfyard in Nanaimo, BC after a local resident libeled an Australian.

    http://www.courts.gov.bc.ca/Jdb-txt/SC/08/08/2008BCSC0827.htm

    Asking that a publisher found to have committed libel trace and take down copies of the libel isn’t that different from other copyright holders seeking DCMA take down orders for copied text, audio, video and image content.

    Deniers, like Truthers and Birthers, spin a tale of a vast conspiracy spanning decades, continents and oceans.

    The level of venom spewed against anyone who dares point out that they have the facts wrong has risen to death threats.

    USA Senator Inhofe has tried to open McCarthy style witch hunts against climate scientists.

    Virginia AG Cuccinelli’s tried to abuse his position to open a criminal probe of climage scientist funding, only to be rejected by a court for failing to make any specific claims, let alone provide any supporting evidence to warrant a probe.