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Fair Comment and Privileged Occasions

I’ve been interested in the linguistic aspects of defamation law for many years. Delving into the history of libel and slander uncovers all sorts of strange facts. Some are discussed in Chapters 12 and 13 of my book The Great Eskimo Vocabulary Hoax, among them a case of a linguistics book that was blocked from publication because lawyers advised that the invented example sentences might be grounds for a libel action.

Under English case law, you can be sued (perhaps even successfully) for the content of interrogatives and imperatives as well as declaratives; for what is presupposed or implied as well as what is said; for statements you don’t yourself regard as defamatory; and even for words of praise if a reasonable person would think you were ironically implying something defamatory.

But there are defenses. Justifiable assertion of a provably true claim will normally not be subject to a successful action. Nor will “fair comment” (nonmalicious expression of opinion). Impartial attempts at informing the public on a matter of general interest after diligently seeking to establish the truth is normally defensible. And above all, there is privilege.

Not just utterances in Parliament or in court are privileged. It is normally a good defense that a statement was made in the course of doing a job that calls for the making of such statements. Asserting to colleagues that a student performed poorly in a course is not subject to a libel action if you are that student’s professor: It’s your job to make such judgments, so you are acting on what is called a “privileged occasion.”

In all the years I have kept an eye on the topic of defamation law I have rarely seen a more extreme example of the sort of case a sensible legal system should have disallowed at an early stage than the suit recently brought by the founder of the Edwin Mellen Press against the university librarian Dale Askey over a blog post. The post has been removed from Askey’s blog now, but filing a lawsuit makes everything public, so you can read it here. The short version is that he takes a dim view of the academic quality of Mellen’s list, and he argued that in these straitened times librarians should think twice about purchasing Mellen books.

The founder of the press did not bring suit until Askey had left his post at Kansas State University and moved to Canada, where the legal system (rooted in English law) provides probably the most plaintiff-friendly jurisdiction in the world for libel suits. In Canada, anything tending to lower the esteem the public has for the plaintiff counts as defamatory; a defamatory claim can count as published in a particular province even if only one person in that province sees it; you can be held liable for defamatory statements that are probably true, and for statements widely believed by the public; and political statements are not exempted—the full force of defamation law can be and is brought to bear on someone expressing a political view in a political context. Intent is presumed—the plaintiff doesn’t have to prove that the defendant intended to defame.

It was not just Askey that was sued in the Canadian courts; his new employer, McMaster University, in Ontario, was also separately singled out, apparently just for having him on its payroll.

Who knows, Mellen might even have won at trial. But according to this report Mellen announced on March 1 that it “has discontinued the court case against McMaster University and Dale Askey.” (A separate case in which the founder of the press is suing Askey personally has apparently not been dropped.) My view is that these actions should never have been accepted as potentially viable. Whatever the value of Mellen books (and note that when 500 readers of the Leiter Reports philosophy blog voted to rank philosophy publishers for quality, Mellen came dead last), a university librarian responsible for spending public money on books should surely be able to voice, on a blog for librarians, his candid opinions (even harsh ones) about the quality and value of academic books. I thought it extraordinary that legal action over such a matter should ever have been brought, even in Canada. It looked like SLAPP suit litigation to me.

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