Friday
Feb042011
by 
Bishop Hill
Bishop Hill Legal unpleasantries
Feb 4, 2011 Climate: Sceptics It looks as though we are about to have some legal drama: Andrew Weaver is going to sue Tim Ball for libel. Ball apparently said that Weaver doesn't know much about climatology.
Reader Comments (57)
Not too keen on Tim Ball, to be honest. It will be interesting to see how this plays out if it actually comes to court.
What is the definition of climatology, compared to meteorology or climate science?
If climatology takes to the courts, it is simply evidence that a scientific argument cannot be sustained.
Isn't climatology like astrology, only instead of looking at star charts, you look at climate models then make something up.
Phillip Bratby
In climatology, you just make it up as you go along. Up, being the important factor when it comes to temperatures.
Having quickly read the complaint, it appears to be a "he said/she said" sort of fight. There are all sorts of the use of "never" in the complaint, all of which are impossible to prove, but all Tim has to do is show one case where it was in fact true.
This will not turn out good for Weaver, as it will shine a spot light on him. Bell has discovery on his side, and can now ask for all sorts of documents from Weaver.
Not smart. Not smart at all.
Thanks guys, just what I expected.
Weaver's student background I believe was in Oceanography. He got AGW religion when Red Funding Sea parted and he became a local celebrity. He's a regular on the west coast news/talk radio circuits and provides much entertainment.
He was hilarious, when during a rash of petty criminals ripping off laptops at the UVIC campus, he believed some secret Black Ops types from the eeevll Oil Companies were after him.
His Best Before Date was sometime in 2008 . . .
Now, now, to be fair to climatology, it is also acceptable to reduce temperatures in the past.
If you can write a baffling but flawed pca based cherry picking method, or find an old fortran gcm program on your supercomputer, you are prompted to full professor.
I think part of the fracas is about whether a climate modeler can be considered a climate scientist.
Good question.
Reading through the claim - there's an awful lot of stuff which could be usefully debated in a court of law.
Starting with "The plaintiff is competent and fully qualified to teach climate science.........."
Maybe we'll finally find out what "climate science" actually consists of.
If Ball can find the funding for a substantial defence this thing could become a watershed event.
GreenpeaceCanada video featuring Andrew Weaver.
It is titled "Dr. Andrew Weaver - Climate Scientist"
http://www.youtube.com/watch?v=25x_sSvZUIo
Andrew Weaver describes himself as a Canada Research chair in Climate Modelling & Analysis.
Climate Scientist? Climate Analyst? Climate Modeller? Computer Modeller? Climate Activist? Climatologist?
Who is the most confused over Andrew Weaver's day job, himself or others?
Half of this claim can be described as fair comment, one half personal dispute and the other half nonsensical .......... yes 1 1/2.
A modeller, eh?
It's interesting that the virtualisation of environmental science has conincided with the rise of alarmism over everything from the rate of species extinction to AGW.
Values can get a foothold when observational data is replaced by simulation. Values are not part of the idealised notion of scientific objectivity.
They are the way that 'noble cause corruption' gains traction within a field.
[I'm loosly paraphrasing Aynsley Kellow here. See Science and Public Policy, Kellow (2007)]
So does being a climate modeller actually qualify Weaver as a climate scientist? Well, yes, of course it does, but with the caveats set out above firmly to the fore.
If you can be sued for that then everyone involved in the debate can sue everyone else involved in the debate!
Tim Ball is having a rough ride:
Retraction via Canada Free Press
On January 10, 2011, Canada Free Press began publishing on this website an article by Dr. Tim Ball entitled “Corruption of Climate Change Has Created 30 Lost Years” which contained untrue and disparaging statements about Dr. Andrew Weaver, who is a professor in the School of Earth and Ocean Sciences at the University of Victoria, British Columbia.
Contrary to what was stated in Dr. Ball’s article, Dr. Weaver: (1)never announced he will not participate in the next IPCC; (2) never said that the IPCC chairman should resign; (3) never called for the IPCC’s approach to science to be overhauled; and (4) did not begin withdrawing from the IPCC in January 2010.
As a result of a nomination process that began in January, 2010, Dr. Weaver became a Lead Author for Chapter 12: “Long-term Climate Change: Projections, Commitments and Irreversibility” of the working Group I contribution to the Fifth Assessment Report of the IPCC.”
That work began in May, 2010. Dr. Ball’s article failed to mention these facts although they are publicly-available.
Dr. Tim Ball also wrongly suggested that Dr. Weaver tried to interfere with his presentation at the University of Victoria by having his students deter people from attending and heckling him during the talk.
CFP accepts without reservation there is no basis for such allegations.
CFP also wishes to dissociate itself from any suggestion that Dr. Weaver “knows very little about climate science.” We entirely accept that he has a well-deserved international reputation as a climate scientist and that Dr. Ball’s attack on his credentials is unjustified.
CFP sincerely apologizes to Dr. Weaver and expresses regret for the embarrassment and distress caused by the unfounded allegations in the article by Dr. Ball."
http://climaterealists.com/index.php?id=7001
Tim Ball still has a dutch wiki but his English wiki was deleted):
http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion/Timothy_Ball
Ok, I don't know who either of these guts are but what's the consensus on who we want to win? ;)
Regards
Mailman
Oh dear. I'm not up to speed with Canadian defamation law but from a Scottish/UK legal perspective, to establish a claim in law the words (spoken or written) must "tend to lower the Claimant in the estimation of right-thinking members of society generally" per Lord Atkin in Sim v Stretch [1936] 2 All E.R. 1237
If one accepts that the alleged comments clear that hurdle, the onus then shifts to the defender to establish the legal defence, that what he has said or written is the truth (veritas).
I think Tim Ball is going to need a bigger boat.
The entire case rests on this:
What the plaintiff wants, it seems, is a judicial declaration that he knows a lot about something. Public recognition is not sufficient re-assurance for him. He wants the courts to take a stand against those who might suggest otherwise.
Apparently, Weaver works in "the field of scientific climatology", but he's never claimed to be a "climatologist". He uses numerical, analytical and statistical models, but he is not a "computer modeler" either (p. 11). In short, he is not a tool maker and it is libelous to him to suggest that he might be making or contributing to the making of a tool, instead of using it.
Even if his lawyers could persuade the court that there is a case, Andrew Weaver's reputation will not benefit from it.
woodentop
Indeed.
Also, I've decided to sue anyone who calls me a "denier". :)
@sHx - with respect, the "entire case" does not rest upon that. The defamatory allegations are contained in paragraph 4, with reference to the article in paragraph 3.
RE: Paul in Sweden
I followed the link you give:
"Tim Ball still has a dutch wiki but his English wiki was deleted):
http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion/Timothy_Ball"
Near the very top, below the deletion notice and under Timothy Ball's entry it says:
"Global warming skeptic NN except for a few GW-related disputes William M. Connolley (talk) 14:25, 27 September 2010 (UTC)"
So Mr Connolley appears again, rewriting history in the name of AGW, striking out the names of climate skeptics as unworthy of mention.
Timothy Ball looks like he might be noteworthy now!
Weavers' diplomas are all in Mathematics as per 8a1. Period.
I am sure that statisticians working on climate data are not calling themselves "climatologists".
Oh dear - the otters (warmists) do seem to have thin skins. Actually, a court case might well be a Good Thing, as it will be hard for them to manipulate proceedings, and judges have an unfortunate habit of seeing through obfuscation...
Popcorn, anyone?
@woodentop
Thank you for pointing out the error. The qualifier, "To my limited understanding", shall henceforth be added to all further issues of the said statement. :)
Still, it is hard to see how the "Inferential Meaning" in paragraph 4 could be derived from the underlined "words complained of in the Article" in paragraph 3.
Incidentally, Canada Free Press was wise to retract the artcile. But its retraction statement and apology was a mistake, IMHO. The statement effectively concedes that Tim Ball inferred many meanings that Weaver complains of.
For example, did Ball really infer that Weaver "shamefully conspired to have his students to heckle and interrupt the defendant..." as claimed in paragraph 4(g)? According to the publisher, CFP, which is not named as a defendant, he did. Well, the court no longer needs to determine that fact, unless Timothy Ball contests it.
Shub
I think part of the fracas is about whether a climate modeler can be considered a climate scientist.
I think you summarize the real issue. All else depends on it.
woodentop
I'm not up to speed with Canadian defamation law but from a Scottish/UK legal perspective,
For what good Wikipedia is, they say it is. Canadian defamation law
However, I still believe that Weaver will pay dearly for his day in court. The complaint makes numerous claims that he "never" did this or that. That is ripe pickings for discovery. For example all his email.
Bell may need a bigger boat, but he might have the Legal Discovery as a rather large one.
http://www.nationalpost.com/related/topics/Canadian+scientist+calls+overhaul+climate+change+panel/2487651/story.html
About what Weaver said regarding IPCC and Pachauri:
“There’s been some dangerous crossing of that line,” said Weaver on Tuesday, echoing the published sentiments of other top climate scientists in the U.S. and Europe this week.
“Some might argue we need a change in some of the upper leadership of the IPCC, who are perceived as becoming advocates,” he told Canwest News Service. “I think that is a very legitimate question.”
and
“The problem we have is that the IPCC process has taken on a life of its own,” says Mr. Weaver, a climate-modelling physicist who co-authored chapters in the past three IPCC reports.
“I think the IPCC needs a fundamental shift.”
and
“Nobody should be using particular pieces of information to advance an agenda,” says Mr. Weaver. “The IPCC cannot be an advocate, because it’s not tasked to do that.”
Contrast with the CFP retraction:
"Contrary to what was stated in Dr. Ball’s article, Dr. Weaver: (1)never announced he will not participate in the next IPCC; (2) never said that the IPCC chairman should resign; (3) never called for the IPCC’s approach to science to be overhauled; and (4) did not begin withdrawing from the IPCC in January 2010"
Looks like 2 and 3 are at least misleading...
@sHx - the law of defamation encompasses (reasonably drawn) inference and innuendo, taking into account the context and the pursuer's circumstances.
For example, it may not be defamatory to state with a nudge and a wink that a well-known, young, single pop star was seen leaving an unknown young lady's house at 6am: the same may be defamatory if directed at a priest.
And on a related note, the law has no problem drawing inferences about a person's guilty state of mind in a criminal context (mens rea being a required element of a common law crime). No mind readers required: the person's words and/or actions can be sufficient to meet the criminal test of beyond reasonable doubt.
This is of course a civil action and the standard of proof is the balance of probabilities.
Alright. Now it's getting good. Time to get some popcorn.
DPdlS: again, I have no knowledge of the "discovery" process in the Colonies, but disclosure in the Mother Country is limited in order to prevent fishing expeditions.
Weaver already has an existing lawsuit against the National Post. He doesn't seem to have a problem with cute fuzzy animals but pretty much everything else is on the table including anyone saying the hockeystick has been "debunked".
Statement of Claim(48 page pdf)
"..Weaver doesn't know much about climatology"
Does anyone? It's a new science, with everything to learn...
fight! fight! fight!
News Flash: reports are reaching us of a schoolyard fight at Greenpeace Public School in B.C.. Principal David S. Uzuki explained what happened. Apparently one upstart young student, Timmy , tried to correct our top student, Andy, when he was instructing the other kids on how to play soccer. Andy was just demonstrating the many ways to score on your own goal when Tim insisted that the point of the game was in fact to score on the opponent's goal. Well clearly this is wrong. Andy invented the game, it is his ball and if he wants to change the rules, make up new rules and ignore all rules, well, because its Andy, we just let him. Timmy didn't seem to understand this and was disrupting the other kids, who didn't know there was another goal to shoot at.
Anyways, Timmy's parents sent a note apologizing for all the fuss and Andy took his ball and went home, muttering something about its his ball and if we don;t let him win he's not going to play anymore. Its a huge loss really. Andy was awfully, awfully...popular -- well at least that's what he always told us and without his game we really don't know what the other kids will do at play time, we can't possibly expect them to create for themselves. All in all, its a big shame that Timmy had to upset that nice young Andy.
p.s. see Swift; see Python, Monty; see satire.
pps who is the "good" guy? the one with the sense of humor who doesn't need a lawyer when somebody threatens his running of the game.
Geographer climatologists are facing the highjacking of climatology by hard sciences representatives and that includes math, physics, chemistry etc... Many of whom are basically telling guys with field experience that "we know much more, just look at our model". As much as there were fossils in the first group, there are also people with little knowledge of phenomenas in the other group, huge egos and lots of research money to burn.
For instance, the so called disparition of Himalayan glaciers blamed for the possible river drying in Asia brought strong criticism from geographers who explained that monsoon and not glaciers were the source of the river water (see Prof. Martine Tabeault). And among physicists who are looking at models, there are also reasonable ones versus the alarmist crowd. We have all heard the line: "if you criticize models you are against the laws of physics" type of arguments, thoroughly debunked by respected physicists of the atmosphere such as Pierre Morel, founder of the LMD. Obviously Weaver is building and using models and what counts is the predictive quality of his work. I recall a post at Climateaudit having a comparison between different models and their matching the 20th century temperature history that was offering a good insight in that matter...
It looks like someone is affected by chronic accute legalite instead of accepting the organization of a very public debate with the other side. I recall watching an informative, well moderated debate between Christie and Schlessinger. Why is this unwelcome in Canada?
I guess scientific climatology sounds more credible than climate scientology, although the latter may be more accurate in some cases.
@woodentop
Reasonably drawn inference, indeed. Assuming Timothy Ball's argument is that what's claimed by Weaver is not what was implied in the article, the court will have to decide what inference an average commuter on a Vancouver bus would draw from the allegedly defamatory words. The test of reasonableness is nearly identical in all common law countries, to my limited understanding :)
Re: Mens Rea
The concepts of mens rea and actus reus firmly belong to criminal law. I am not sure if they are relevant, useful, or used at all, in law of defamation or other civil matters, except for assessment of damages, perhaps. Example: Farmer A neglects fence maintenance. As a result his cattle trip into Farmer B's property and cause damage. Farmer B has to prove negligence on the part of Farmer A, not 'guilty mind'. If Farmer A intended such damage then he'd be liable for criminal charge in addition to civil lawsuit.
In defamation, if it can be proven that the defendant knew that the allegations were defamatory but went ahead with it anyway, and that the defendant continues to be unrepentant, then punitive and exemplary damages may be awarded against them, in addition to normal damages. Usually, it is the punitive and exemplary damages that break the bank, if not the normal damages and the legal fees. Each jurisdiction differ, of course, in terms of the standard of proof, the onus of proof and the damages, and these add up to a lot of difference in the end. But common law countries have a lot in common. My limited understanding is derived from Australian laws.
My learned friends tell me that defamation and intellectual property laws are the two hardest areas of legal practice. A lot depends on the meaning of the words and usage, and these two areas of law are not as well-settled as public law, contracts law, constitutional law, criminal law, or even the law of negligence. A lot of money and ego is involved, and court decisions could go either way. In the absence of an empathic victory for one side, both the plaintiff and the defendant usually lose in defamation cases. One may add that only the lawyers emerge as winners.
Coming back to the case at hand, I'll have to agree with Don Pablo that much depends on the discovery process. For example, what kind of communication took place between Timothy Ball and Andrew Weaver regarding the allegedly defamatory article? Let's assume Weaver sent Ball an email asking, "do you mean to say I shamefully conspired with my students to heckle and interrupt your lecture"? If Ball were to respond with, "Yes, if that is how you see it, so be it", he might be in trouble. If he were to respond with, "No, I meant you ignorant climate scientists and academics create a lousy state of mind in universities that cause students to act like this. And that event was an example", etc, then his hand would be much stronger. The discovery process will help clear up "the inferential meaning" for the reasonable person. They might not even need to consult a dictionary, if Ball left no room for a different interpretation.
On a related note, there was a similar conflict between George Monbiot and Richard North in the land of the strongest libel laws. North's complaint didn't even make it past the relevant arbitration body on the grounds that Monbiot wrote an opinion piece, not a factual one.
sHx - my mens rea / actus reus was a slight detour and I apologise if it's muddied the waters: the mischief is in the communication, and what that reasonably well-informed commuter on the Vancouver bus would make of it.
I've no intention of going into a full exposition of defamation law here. However, in the Notice of Civil Claim (paragraph 6) you'll see that there is an alternative claim of "malicious falsehood" (an esto case in Scotland for those interested) which stands as a forbidding legal tower behind the defamation claim: if the matter goes to trial and sufficient evidence emerges to move matters beyond defamation and into malicious falsehood then things become distinctly more unpleasant for the defender.
I make no concrete prediction of outcome but I simply say that the case brought has, in my opinion (and that of McConchie Law Corporation, though that's of incidental value) a realistic chance of getting past the initial legal hurdle that I have outlined above.
Hence my comment about the boat size.
So Dr Ball implied that Weaver is not a "real climate scientist"? This raises, yet again, the question of exactly who IS a "real climate scientist".
In my view,m the first step is to eliminate anyone who actiually claims to be a climate sceintist . None of them are, there was no such course at university when anyone old enough to participate in the IPCC was training. Practically all participants in the debate have qualifications in some other more or less related field, such as atmospheric physics (Lindzen) or railway engineering (Pachauri, /sarc), or mathematics (Weaver).
Anyone calling themselves a "climate scientists" rather than describing themselves in terms of the discipline in which they were trained, has clearly nailed their colours to the wall. Asking such a person about AGW is of similar utility to asking a bishop about the existence of God - the opinion is specified by the title.
So Weavers insistence that he is the "real deal" is almost certainly true (after all he is a computer modeler, which is much of what "climate scientists" actually do these days), but damning in terms of his credibility as far as I am concerned.
woodentop
DPdlS: again, I have no knowledge of the "discovery" process in the Colonies, but disclosure in the Mother Country is limited in order to prevent fishing expeditions.
While it may well be that Canada has absurd limitations on discovery, read the complaint and the VERY LONG LIST of things he "NEVER" did. That surely opens his professional communications up to a very careful check.
In the US, we would be checking his underwear. I certainly think that his long list of "I NEVERs" warrants a read of his emails and other professional correspondence. I believe that this lawyer (or barrister) has overplayed the complaint.
If this were in the US, I would be putting money on Bell. I don't know about Canada, but I suspect that will happen in this case. I believe the complainant protested too loudly.
We shall see.
I have no question that Bell made an complete ass of himself. However, so did Weaver.. I am with others suggesting that we stockpile popcorn and watch the drama unfold. It could be very interesting.
sHx:
On intellectual property rights, a sobering talk by Robert Laughlin
When I google "tim ball" I find right near the top, SourceWatch, DeSmogBlog, and Deltoid. Plus deleted from Wikipedia.
All that makes me suspect that Tim Ball has a great deal going for him that I will probably respect. Not only that, but when I see these heavies onto someone, I want to show solidarity because these heavies are nasties. Tim Ball qualified in Climate Science just when it was starting to corrupt, saw this, spoke up, and seems to have paid for this with a lifetime of having mud thrown at him. So woe betide if he too throws mud.
As with Delingpole, I don't have to agree with someone completely to want to support them when they are down and when they are basically fighting for integrity on the same side as myself. But there's a lot in Ball's article with which I'm in agreement, and at least some of Ball's "false allegations" are lifted straight from another reporter so those at least are surely not Ball's fault
My suspicion would be that Weaver is accusing Ball in a similar way to Bradley accusing Wegman of plagiarism - someone who can afford legal costs to say "hands off" to someone who is coming too close to undesirable truths.
@DPdlS - the point here is that in defamation cases it is assumed that the person bringing the charge is in the right. Once the initial legal hurdle is passed by him or her, the ball is in the other court.
The potential "defences" are in that sense irrelevant. They are fair notice of the facts which the defender may lay before the court. In the papers, they are there to show there is a prima facie case of defamation.
I have no knowledge of the courts outside the UK and I appreciate my view may be warped by that perspective, but I stick by my "bigger boat" comment.
PS to DPdlS: we have "Advocates" here in Scotland ;-)
woodentop
You clearly know a great deal more about this than I will ever know, and I agree with you that UK libel law is absurdly bent to the plaintiff. And I agree that your point about a bigger boat is well founded.
I also believe that the complaint is too strong. That is my point. If you make those statements, you have to defend them. Far better that the barrister or lawyer writing the complaint was more self-controlled. Making all those statements of "I NEVER" merely opens you to scrutiny.
I am not a lawyer, but I have done a good deal of contracts work as a paralegal and the first rule I learned was not to make ANY claims you don't have too. When I read the complaint, I immediately thought "First year law school".
And as we both know, it is actually all up to the judge. He gets to set the fishing rules. What he decides on discovery will be the key issue.
@woodentop
I wouldn't hesitate to defer to your learned judgment on this. (You're the legal practitioner whereas I've only had a brush with law.) I also agree that this claim cannot be dismissed as frivolous at face value, and that it has cleared the first hurdle.
But speaking on the basis of the only pieces of evidence I have seen -the allegedly defamatory article, a statement of claim, and a retraction and apology from the publisher-, I cannot see how a successful case can be made in any common law jurisdiction. There are many laws that safeguard the individual's right to free speech and commentary, though we are often told the mother country has gone on a frolic of her own on this.
The climate debate is often heated, and in the scheme of the debate, the allegedly defamatory article reads mundane and innocuous, and nothing like libelous. That is how I see it even before hearing what the Timothy Ball and his lawyers have to say.
It should be noted again that the publisher has not been named as a defendant in this case, quite possibly as result of the retraction and apology. I'd like to know whether they parted ways with the author after legal advice or at the mere sight of a legal threat by Andrew Weaver.
Re: bigger boat
I was curious what you guys meant by 'bigger boat'. Thank gods there's the Urban Dictionary:
Good talking with you. Best wishes.
DPdlS
The allegedly defamed person has made a complaint. There is a prima facie case based on a widely disseminated article. The allegedly defamed person doesn't have to prove anything over and above the initial legal test - the onus is on the defender to prove they didn't defame, the absolute defence being "truth". There are subtleties based on jurisdiction and case law of course.
So it's not surprising that the allegedly defamed person would fire as many legal bullets over to the other side - lots can be lost and it doesn't matter. And threaten them with an even worse fate in the event that it goes to trial.
Defamation cases are funny things. I can't see this going any sort of distance at all.
@sHx - as you rightly note, the action is against the author... that stands, irrespective of the actions of the publisher. Again, I can only talk from a Scottish/UK legal perspective and am definitely not giving legal advice in a Hedley v Byrne sense (for those of you out there)...
Erratum. Saviour on a velocipede..
Hedley Byrne & Co Ltd V. Heller & Partners Ltd [1963] 2 All ER 575
Doh.
Woodentop
But if you make a number of incorrect statements which are challenged and shown false where are you? Use of absolute terms is very dangerous that way. That is my point.
Absolutely true. This will be fun to watch and given the personalities involved, it will be hilarious. And then they will both realize that only ones making money are the lawyers.
Also Hedley Byrne & Co Ltd V. Heller & Partners Ltd [1963] 2 All ER 575 was interesting reading. Turgid but interesting. I absolutely refuse to take responsibility for what I have said!
Well ... it will be interesting as there will be discovery .....