Friday, March 14, 2008

Is Harper opening himself up to a potential libel suit?

That’s the thought I had when I read Kady's blog-entry about the part of the Stephen Harper libel statement of claim in which Harper alleges the digital recording of his interview with reporter Tom Zytaruk had been edited, presumably to make Harper look bad.

Says the filing:

21. The digital copy of Mr. Zytaruk’s interview of Mr. Harper is incomplete with the result that Mr. Harper’s answers as reflected on the digital recording are not provided in their entire context. The digital recording of the interview does not contain the beginning of the interview. Several of Mr. Zytaruk’s questions are inaudible. There is inconsistent background noise in the digital recording of the interview. At one point, an edit occurs in the digital recording and some unknown audio content of unknown length is missing from the digital recording. The digital recording of the interview ends while Mr. Zytaruk is talking but has not completed his sentence.

As Kady writes:
The unstated, but obvious, implication is that this was done deliberately. But who, exactly, is being accused of doctoring the tape? The author and/or publisher? The Liberals? Someone else entirely?

It seems somehow unfair to allow an allegation like this to stand, unchallenged, despite the damage it could do to the reputation of the parties named - not so much the Liberal Party, which will at least have the opportunity to defend itself in court - at least, if the case goes forward - but Zytaruk and his publisher, who haven't (yet) been named in any action, despite repeated appearances in the statement of claim, which includes the text of an email sent by the publisher to a journalist who was working on the story.

Conservative operatives and talking heads have regularly been raising questions about the veracity of the recording. And it could lead to trouble. They should be careful to avoid implying Zytaruk might have maliciously edited or doctored the tape. I don’t see, if such a thing was done, whom else they’d contend would have done it. It was Zytaruk’s recording, it was his publisher that released the excerpts, and he wasn’t come forward to claim any evil doings with the recording were perpetrated by a third party. So whom else would the Conservatives contend is the mystery editor? Gurmant Grewal?

All a journalist has is their reputation and their integrity. If it was being implied that I, as a journalist, was doctoring or editing recordings out of context, that would seriously damage my reputation as a journalist and my ability to do my job, and I would have to look seriously at a libel action to defend myself.

Unless the Conservatives have some evidence here, they may be entering shaky ground. Wouldn’t it be ironic if they got hit with a libel suit relating to their own libel suit?

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Steve V said...

I find this part of the claim very telling. In introducing a disinformation campaign against the tape, they in fact acknowledge that they are very uncomfortable with its contents. It is really an admission that Harper says worrying things on that tape. If Harper is clean on that tape, then you don't question it's authenticity. The funny part, the apparent breaks in this tape never occur between a question and an answer, they are in full, which shows just how desperate the criticisms.

If you can't deal with the words, then you must attack the source.

Bibendum said...

Legal pleadings are privileged.

Jeff said...

Indeed Steve, it is most curious. Also itneresting is that they haven't said just what was cut out either.

Bibendum, so are comments made in parliament. Nevertheless, the same accusations made in the pleading have been made regularly in the media by Conservative MPs and surrogates.

bigcitylib said...

And Zytaruk says he turned the tape off, then turned it back on when Harper came out (to Zs car, I think) to answer a question more fully. Harper is basically saying that did not happen.

MarkCh said...

It looks to me like they are pretty careful in saying that audio content is missing. The truth of that should be ascertainable from the tape. If it is true, they are home free although, as you say, they should be careful not to point any fingers at any specific person.

ALW said...

You must be joking. Saying “someone has tampered with the tape” is very different than “so-and-so tampered with the tape”

In fact, this exemplifies exactly the carelessness that has landed the Grits in trouble. It wasn’t enough for them to say "Tories (as in, someone representing the Conservative Party) offered bribe to Cadman". No, they had to explicitly state Harper knew of it.

The sad fact of this whole situation is that the Liberals could have milked all the political benefits and suffered none of the legal backlash if they’d just been more careful in their wording. But again, the temptation to overreach - at a time when things were not going very well for them - was simply too great.

Mark Richard Francis said...

Given that the author of the tape states that it has not been altered, anyone stating otherwise outside of a situation of privilege is making a defamatory comment about the tape's author, even if the author is not identified in the defamation.

The one non-privilege situation where it may not matter is if an author is quoting Hansard.

Burton, Formerly Kingston said...

Jeff, Here is my problem, The Lawyer they have hired is no slouch, even WK says that. I am sure that he reviewed the case throughly before he took it, as he has no desire to look like an idiot and why would he as successful as he is take a dog case. Lawyers that far along in their career take cases they will win and assign the dogs to the younger lawyers. Even the NDP MP is saying on the face of it, it is libel.

Dropping Mr.Dion and the others is actually a very smart political move. Since their legals fees would of been paid by the HofC and that if any evidence their legals teams might of discovered would of been of use to the LPC he has removed that assistance from the LPC and also the political taunting of this is costing the Tax Payers millions, now it is costing the CPC and the LPC millions, and before you comeback with they are partially funded by the taxpayers, well it is their decision how they spend that money once they get it so if the LPC wants to spend it defending the Libel claim so be it.

RuralSandi said...

And the experts in tape tampering? Ask Grewal and why did he have to resign?

You know it is said, that some accuse others of what they are capable of themselves - Spitzer comes to mind.

Gayle said...

"Jeff, Here is my problem, The Lawyer they have hired is no slouch..."

Why do you persist with this argument?

It is stupid. Really, really stupid. Amazingly stupid.

If you want to know why, read my many other responses to this argument.

Can you please start relying on something substantive to support your arguments?

The Rat said...

"The unstated, but obvious, implication is that this was done deliberately."

Imply? Is that really the level of your thinking? Harper states that "someone" edited the tape (probably a provable fact) and you infer that to mean it was "malicious" therefore it is libel? I can infer all sorts of nasty things about others from your writings, does that mean you have libeled them or that I have an active imagination? In fact, it would be libel only if I stated my inference as fact, something you have come closer to doing than Harper. So who has libeled whom???

Burton, Formerly Kingston said...

Gayle, the reason you consider it stupid is you cannot counter it. I know this is hard for you to understand but the GD LPC screwed up this time and they should of back down when asked. Lawyers do not take high profile cases to lose Gayle, that is the nature of the beast. Harper outplayed the LPC again and Mr.Dion walked hell he ran right into it. He cannot even put forth a convincing argument that the action is abusive after he did the same thing to the Bloq and remember he did it as a person not a MP same is Harper is doing.
Take your red coloured glasses off and accept the fact that the LPC is going to be spending money desperately need to defeat the CPC on defending their website when they easily could of offered even a half apology and ended it. Something along the lines of, Well we did not mean it to sound like that and if it did, were sorry. Works all the time.

Back to the subject of your post Gayle.

Go ahead Gayle, tell me why this guy would take this case unless he thought he would win it. Brief Bio below.

Rick Dearden is a senior litigation partner in the Ottawa office of Gowlings and practices primarily in the areas of international trade and customs law as well as media and defamation law.

Rick is recognized in the Legal Post’s Top 100 Canada-U.S. Litigators, the Canadian Who’s Who, Lexpert's Guide to the Leading 500 Lawyers in Canada, The Best Lawyers In Canada, the International Who’s Who of Trade and Customs Lawyers and the Chambers Global Client’s Guide To The World’s Leading Lawyers for Business. He serves on the Board of Directors for the Ottawa Citizen Literacy Foundation and The Hnatyshyn Foundation.

Doesn't sound like he needs the money Gayle.

From WK site. Rick Dearden at Gowlings is acting for the Prime Minister. I articled under Rick when the firm was doing a lot of work for virtually every major media organization in the country. In the past twenty years or so, I can't recall a single libel case he has lost. FYI.

You may not think who the lawyer is matters but your wrong. I suggest you sit back and think about it and come up with a better argument to my point then , it is stupid.

Gayle said...

"Lawyers do not take high profile cases to lose Gayle, that is the nature of the beast."

There you go again. If that is all you have to hang your hat on, your argument is weak. Lawyers LOVE high profile cases - that is how they get more money. This guy is going to get tons more clients just because of this case.

By the way, since you, again, did not provide a link to your quote, may I assume it came from the firm's website? Why yes, yes it did. All that proves is that he is good at marketing himself.

My point, kingston, is the mere fact the lawyer is high profile does NOT make the case a winner. I know that is hard for you to wrap your head around, but there it is.

A lawyer who never loses is a lawyer who settles too many cases (not that this man is claiming he never loses).

Good lawyers are the ones who are willing to take on cases even though they are losers. The most respected lawyers in the country are the ones who can make a strong argument for their client, no matter who that client is and how weak the case. THAT is why someone is named a top lawyer. Their win rate has nothing to do with it.

A lawyer who turns down a case from the PM of Canada is an idiot. You cannot buy that kind of publicity. Not that I think this lawyer would ever turn down any case if the price was right. If all he cared about was quality, he would not be marketing himself.

If you do not believe me, why don't you call up a few lawyers and ask them if they would ever turn down a high profile case like this one, even if they thought the case was weak. You will soon see I am right.

You are way out of your league arguing this point kingston.

Gayle said...

Just to further prove my point kingston, let me direct you here:

Mr. Greenspan has a pretty impressive CV, and yet he recently lost two very high profile cases. Hmmm

Saskboy said...

OK, I'm starting to think more and more that it's going to come down to me or some other blogger to phone the RCMP and ask them to investigate a bribery attempt by the Conservative Party of Canada. The tape evidence has even been in the news, how could they not have this wrapped up by now?