Canadian Judge Orders Reporter to ID Anonymous Source in Libel Suit

Image via WikipediaCiting the Supreme Court of Canada's decision last Fall in Globe and Mail v. Atty. General of Canada that failed to create a blanket shield law to protect journalists (See "TUOL" post 10/28/10), British Columbia Supreme Court Judge Paul Williamson this week ordered Vancouver Province reporter Elaine O'Connor to reveal a confidential source in a defamation suit involving Green party Member of Parliament Bill Lougheed, according to a story in the Winnipeg Free Press.

The defamation case arises from inter-familial warfare between Kelly Wilson, spouse of former Vancouver-area MP Blair Wilson, and Lougheed, her stepfather. A Province article alleged Lougheed claimed Wilson was unfit to serve in public office and quoted an anonymous letter suggesting that Wilson purportedly had engaged in profligate campaign spending. The letter triggered a probe by Elections Canada that found most of the letter's claims to be unsubstantiated, though Wilson owned up to a failure to disclose $9,000 in campaign expenses.

The plaintiff asked the court to compel O'Connor to identify the author of the anonymous letter. The Province plans to appeal Judge Williamson's decision and will seek to stay his order. Wilson's libel suit is presently in pre-discovery. Judge Williamson wrote that he could not determine whether protecting the anonymous source at issue would be in the public interest until he knows the identity and motive of the letter-writer.

Across the border, in the conflict between reporter's privilege and the right of a plaintiff to prove his or her defamation case in court, judges have often sided with the plaintiff, dating back to Garland v. Torre, 259 F.2d 545 (2d. Cir. 1958), in which the court held the disclosure of relevant information that went to the heart of Garland's libel claim outweighed the First Amendment argument for preserving the confidentiality of the source.

Still, count "TUOL" among the U.S. and Canadian journalists wondering: "What's going on with those Canadian courts, eh?"



 

DOR Request for Amazon Sales Data Violates First Amendment

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The U.S. District Court for the Western District of Washington this week ruled in Amazon.com v. Lay (Case No. C10-664-MJP) that efforts by former North Carolina Dept. of Revenue Secretary Ken Lay to obtain information from Amazon, Inc. regarding sales to North Carolina residents for tax purposes violated the First Amendment.


As first reported by The Volokh Conspiracy blog, Judge Marsha J. Pechman cited the U.S. Supreme Court decision in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) for the principle that anonymity "exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular."  The Court held that the government had no right to know what music, books and audiovisual materials North Carolinians were purchasing through Amazon.com.

In her 26-page opinion granting Amazon's request for summary judgment and denying DOR's motion to dismiss, Judge Pechman wrote: "[T]o the extent the March Information Request demands that Amazon disclose its customers' names, addresses or any other personal information, it violates the First Amendment and 18 U.S.C. sec. 2710 only as long as the DOR continues to have access to or possession of detailed purchase records obtained from Amazon."

UPDATE: NJ Appellate Court Says Blogger Unprotected by Shield Law

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Does Ky. Shield Law Cover More than Plaintiff's Dress?.

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The Richmond (Ky.) Register is relying on the Commonwealth's Shield Law and the First Amendment to support its refusal to divulge the identity of an anoymous poster on a forum linked to the newspaper who allegedly defamed a college student involved in a dust-up with mall security, according to The (Louisville) Journal-Courier.

Kymberly Clem, a student at Eastern Kentucky Univ., was booted from the Richmond Mall on Aug. 9, 2008, purportedly because the dress she was wearing--and had purchased the previous day at that mall--was too short. The story garnered national attention and a posting from a blogger identified as "12bme" that appeared on Aug. 13, 2008, following a Register story about the incident alleged that Ms. Clem was escorted from the Mall because she exposed herself to a woman accompanied by her children who supposedly commented on the dress length.

Clem sued 12bme for defamation in Madison Circuit Court and subpoenaed The Register to obtain the poster's identity. Predictably, the newspaper argues a First Amendment right for itself and 12bme to speak freely in the public forum of an online site. However, the Register also contends that Kentucky's Shield Law, adopted in 1936, prohibits the Court in the Clem case from requiring the Register to disclose the identity of 12bme, whom the Register claims is a confidential source because a Register reporter wrote a story about the Clem matter that cited the posting.

Clem's attorney counters that the posting is false and unprotected by the 1st Amendment, particularly because it accuses Clem of criminal conduct, that is, indecent exposure. Although the Register is contesting the subpoena, it not only removed the posting at issue, but banned 12bme from making future comments in the forum.