Wednesday 24 November 2010

Hugh McFadyen should sue Greg Selinger

Why not? I probably would if I were him.

I'm refering to the negative campaign ads that the NDP is airing on TV, and now appearing in your mailbox as well. Pretty soon there will be billboards too:

Negative ad campaigns are standard operating procedure in politics now, and to some degree people expect a level of exaggeration or half truths. That doesn't make it right, but that's the way it goes. That said, you have to draw a line somewhere unless you want to end up with swift-boat style ads dominating political campaigns.

The TV ads say "We know McFadyen would overturn water protection laws and allow e-coli and urine to pollute our rivers and lakes." Bruce Owen has already wrote about this in the Free Press:

For the record, all he’s said is that the province could save $350 million by backing off its plan to require the City of Winnipeg to remove nitrogen from its wastewater. Phosphorus should be removed, but removing nitrogen too would have a negligible effect, he says. A bunch of scientists say the same thing.
Not to mention that there is already e-coli and urine polluting our rivers and lakes.

To what degree can you bend the truth in a political ad? Does there have to be at least a half truth? A shred of truth? A nugget? A photon? In civil law, the standard would certainly be set above "photon".

The Criminal Code says that defamatory libel "is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person or concerning whom it is published." I would say that the NDP ad fits that description quite well.

A valid defense against a charge of defamatory libel is truth. If what you're saying is true then you're off the hook. What the NDP ads say certainly is not. Not by any standard that would be recognized by the courts. I just don't see how McFadyen would lose if he chose to sue Selinger and the NDP for libel. That is, unless he had the misfortune of running into an NDP-friendly judge. Then it could back-fire on him in a big way.

That's risk no. 1. Risk no. 2 is that the public will view him as a pansy-ass whiner who can't take the heat of politics. Thus if he were to sue the NDP, he should do it on the down-low. Don't say anything about it publicly. Somebody will notice (probably a blogger with too much time on their hands) and it will come out with a splash. When asked about it, Hugh can play it cool and simply comment that there was no truth to the "fact" portrayed in the ads. That way he gets to confront the ads in a manner that is not forced or desperate.

The upside is huge. (Or "Hughe" in this case. Ha! See what I did there? With the "h"? You know, cause McFadyen's name is "Hugh, and um ... ya anyhow ...) Right, upside no. 1: the big kerfuffle about the untruthiness of the NDP ad will put a spotlight on the integrity of the NDP and call into question the factualness of everything else they have said.

Upside no. 2: it will bring the issue of the Water Protection Act into the front pages. The newspapers will be forced to explain what exactly Hugh called for in his press release, which will provide another opportunity to expose the collosal waste of money of removing nitrogen from the water.

Upside no. 3: should Hugh win, it could be for a substantial amount of money which could really hurt the bank balance of the NDP. The NDP could even be bankrupted if the stars aligned properly for the PCs. More than likely it would be settled out of court for some mutually agreed sum, but whatever that sum it still amounts to the NDP fundraising for the PC party.

Upside no. 4: ads are bound to be more truthful in the future.

techincal note: I don't know if a defamatory TV ad would consitute libel or slander. Libel is written, slander is spoken. TV ads are spoken, but they are read off a script, thus I am assuming libel would be the charge.


Anonymous said...

Nice billboard. Assured chuckles abound! Those lefty ads are even nastier sucker-punches than the ones from the Harperites for Coustuea's sakes...Working in water/enviro eng. industry..I enjoyed your column, and think most of those "upsides" sound pretty positive.

cherenkov said...

I would like to think that most people see through the ads, but you never know. Thanks for the comment.

RM said...

"Most people" elected the same old (HS in the West End) again. Do you REALLY think "most people" see through that? I think "most people are gullible and eat that stuff up. NDP voters are (for the most part) non-thinkers. They are followers.

cherenkov said...

NDP voters will vote NDP regardless of what the ads say. The "most people" that I had in mind are the swing voters who hopefully are able to think independantly.

unclebob said...

Without going to look it up exactly, there is an element in libel that allows for much more latitude to condemn a person who has a public face like a politician or sometimes an entertainer.
Yes the campaign sucks nevertheless Hugh sure doesn't do much to warm anybody up to him

cherenkov said...

Bob, I have only taken one law class so I am no expert (and I have also stayed at a Holiday Inn Express), but I don't recall that. There is a different standard for public figures in the U.S.. You're not thinking of absolute privilege, are you? That wouldn't apply here. You might try to apply the "fair comment" defense that allows you to make defamatory comments on political matters as long as it's your open and honest opinion, but I don't see how that applies in this case either.

Judging from the number of hits I got from the Leg yesterday, somebody may be seriously considering this.

Anonymous said...

I want a T-Shirt with that picture on it for christmas.

cherenkov said...

I could probably hook you up.

Anonymous said...

Are you really insinuating that McFadyrn sue the NDP for negative attack ads when the Conservatives are the ones responsible for bringing this Republican style politicking to canada. American politics are reprehensible and you can thank the PCs for using that same garbage, that's like George Bush complaining about Afgahns torturing American soldiers, hypocritical.

cherenkov said...

It doesn't matter who imported the strategy into Canada, if somebody crosses the line from "negative spin" to "defamatory libel" then why not challenge them? The NDP has crossed that line.

Paul Martin threatened to sue Stephen Harper after Harper compared the Liberal Party to the mob. Maybe he should have.

David Sumner said...

So the Conservatives implying that the Liberals are soft on pedophiles and anti-Semites isn't crossing the line? I'd rather be associated with urine in lakes than be accused of supporting pedophiles and being anti-semetic. That line was crossed a long time ago. How does the old adage go? Those who live glass houses shouldn't throw rocks? And you know its just a matter of months before that political machine McFadyen has at his disposal starts getting ramped up and slinging more mud than all other parties combined.

cherenkov said...

If the Liberals oppose legislation that toughens rules against pedophiles, then at least there is a shred a truth there.

Yes, the provincial PCs will put out more ads slamming the NDP's record. An opposition party does not have it's own record to run on. It has to run on the government's record. The point is that the NDP is completely making shit up. The PCs may do that too, we'll have to wait and see, but I doubt they will because there is no need too ... there is plenty of material for them to choose from.

David Sumner said...

Yes, the liberals opposed an omnibus bill, that included more than just cracking down on pedophiles. The scope of the bill was the problem, but true to conservative ways, they pick and choose which battles they want to fight, so they focused on parts of the legislation that would make they're counterparts seem soft on crime. Just because you agree with 90% of what is in the bill, doesn't make you a pussy when don't back the bill fully. Like you said, there's a shred of truth there, and the truth is theyre not soft on pedophiles, they just don't want legislation passed that makes a criminal out of everybody. As for your remark that the NDP voters will tow the line because they'll do whatever they're told sounds a lot like Harper and his "my way or the highway" philosophy.

cherenkov said...

What remark are you referring to?

I don't recall saying anything like that, but I'll add that there are "tow the line" supporters on both side.

David Sumner said...

"NDP voters will vote NDP regardless what the the ads say"

cherenkov said...

That's not the same thing as "do whatever they're told", but I think it's a true statement. Most long-time NDP voters won't abandon the party because they don't like the ads that are run. I was differentiating between them and swing voters.

David Sumner said...

I wholeheartedly agree, people have their beliefs and they stick to them. But as for the swing vote, well 60% didn't come out, so I've got to believe that's a moot point. Free thinkers maybe, motivated? Doubtful.

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