Quote:
Originally Posted by SebC
A good read: http://www.torys.com/Publications/Do.../LDR2008-5.pdf
I don't think there's any way Wenzel's suit meets this threshold.
(For those who won't read it, it essentially says that Nenshi's statements don't need to be true, nor does Nenshi need to believe that they are true... they only need to be things that one could rationally believe to be true on the basis of things that are true - and to me, they certainly meet at least that bar.) |
This article is about the defense of fair comment so it's not Wenzel who has to meet this threshold, but it is a good one to link.
Really, defamation is a screwy tort because from my recollection of law school you don't have to really prove anything, other than that the statement you're upset about was published. The law makes a presumption not only that the statement was harmful and caused damages (proving damages is often the biggest hurdle to get over in a tort case), and that the person publishing the statement did so with actual malice, but it assumes that the statement is FALSE. That's always seemed messed up to me: the plaintiff doesn't even have to convince the court on a balance of probabilities that the defamatory statement isn't true. Truth is a defence - the burden is on the defendant.
So I think Slava's right, technically, that the statements are pretty clearly defamatory, because of the way the tort works. It's pretty obvious that the statements were published - they were made on a radio program. However, because of the link quoted about it's far easier than one might think to make out a defense.