Marco wrote:
Perhaps also of relevance to this point: according to one of my lawyer-friends (disclaimer: not knowledgeable on the Canadian system, but he would be surprised if it were that different there), you cannot use the argument that one's defamatory statements were truthful (or fair based on available knowledge at the time) if one needs information from the aggrieved party in order to find out whether they were indeed truthful.In short: Ball didn't need Mann's files to accuse him of skullduggery. So why does he need them now?
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Additionally, folks were able to replicate the results of MBH98 over a decade ago. It seems that any necessary materials have been available for some time.
The replicability point is better. I think the point of this post is legally dubious. I accuse you of thing X. You sure me for libel. I say thing X is true, but I can only prove it from your private files. Why isn't that a perfectly reasonable statement? Thus "you cannot use the argument that one's defamatory statements were truthful... if one needs information from the aggrieved party in order to find out whether they were indeed truthful" is I think wrong.
If you claimed X was true, what did you base that on?
John Hinderaker, a lawyer who blogs at Powerline, wrote
The rules of discovery provide that a litigant must make available to opposing parties documents that reasonably bear on the issues in the case. Here, it is absurd for Mann to sue Ball for libel, and then refuse to produce the documents that would have helped to show whether Ball’s statement about him–he belongs in the state pen–was true or false. The logical inference is that the R2 regression analysis and other materials, if produced, would have supported Ball’s claim that the hockey stick was a deliberate fraud on Mann’s part.
Mann says that his lawyers are considering an appeal. He can appeal to his heart’s content, but there is not a court in North America that will allow a libel case to proceed where the plaintiff refuses to produce the documents that may show whether the statements made about him were true or false.
Hinderaker's comment is obviously based on him believing Mann's version of what happened.
> what did you base that on?
Well, quite possibly guessing. But the issue at law (I think) is whether what you said is true or not. Not whether or not you knew it to be true when you said it.
So if I said John Doe is a lifelong serial child molester, he couldn't sue for defamation even if he or I prove he isn't (if we could prove a negative)? Isn't the damage already done with the accusation? Celebrities often sue gossip magazines for crazy claims about them, and they often win (AFAIK).
IANAL but: no, that's not the point. You say something, you can in principle be sued for it. And if it turns out to be false and defamatory and whatever, you lose. But I'm not sure the legal test is or should be that you were certain you were right at the time: it could just as easily be that it turns out to be provably true afterwards.
If I say "X is a (bad thing)" on no evidence at all, and X sues me on the grounds that he is not (bad thing), then surely me discovering later on that my wild accusation just happened to be true is a defence?
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