The Canadian Journalism Foundation hosted an event on February 16, 2010, at Innis Town Hall in Toronto to discuss these rulings and other cases currently in the SC. See "Defending Against Libel and Contempt" for more information.
New defences to libel actions don’t come along every day, so what exactly do the pair of Supreme Court of Canada rulings handed down December 22 mean for journalists?
In its rulings in Grant v. Torstar Corp. and Quan v. Cusson, the court created the defence of responsible communication on matters of public interest. It shifts the focus away from what was published or broadcast – Are the facts true? Is opinion fair comment? Were comments made in the courtroom or other protected forum? – and places it squarely on the conduct of the reporters and editors who produced the story.
In essence, it grants journalists reporting on issues of public importance the right to be wrong. Not completely wrong, of course, but the defence will defeat a libel claim if, despite the journalist’s best efforts, some facts or allegations turn out to be wrong or false.
The defence reflects how the law treats allegations of negligence against doctors, lawyers and other professionals. They are expected to be skilled and competent, but not perfect. Patients die on the operating table, but not every death is the result of malpractice.
The issue is how the operation was conducted and whether the surgeon’s actions were reasonable in the circumstances.
As Chief Justice Beverley McLachlin noted in one of the landmark rulings, the law of defamation protects the reputations of individuals but cannot trump the Charter-protected rights of freedom of speech and freedom of the press. In order to foster the free exchange of information vital to our democracy, the law must not "demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose."
"Productive debate," she added, "is dependent on the free flow of information."
The defence is based on the "responsible journalism" defence developed in the British courts over the past decade. The Ontario courts adopted it in 2007 but the Supreme Court’s rulings add refinements that now apply across the country.
Let’s unwrap this Christmas present for journalists and explore how it works.
First, the "matters of public interest" part. The court offers a broad definition of the kinds of stories protected under the new defence and says judges must examine the story as a whole and not just the defamatory statement. Public interest "is not synonymous with what interests the public," the court cautioned, and would not include "mere curiosity or prurient interest" in the private lives of public figures or celebrities.
The subject need not be of national importance, or of interest to a wide audience. A battle over development in a rural area may be of local interest, for instance, but it involves wider issues of land use and environmental policy. In the court’s words, "it is enough that some segment of the community would have a genuine interest in receiving information on the subject."
And "public interest" is not confined to stories about government and politics. "The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality."
Now for the “responsible” part. The court formulated a list of factors (based on the British test) for judges or juries to consider when assessing how the story was produced:
- The seriousness of the allegation: The more serious and damaging the allegation, the more diligence the media will have to show in researching and verifying the story.
- The public importance of the matter: Not all subjects of public interest have the same importance. Stories exploring "grave matters of national security" will require more diligence to investigate than those on "the prosaic business of everyday politics."
- The urgency of the matter: Consideration will be given to the need to file timely reports on important events, but mistakes made in the rush to score a scoop might not be forgiven if a reasonable delay would have detected the error before publication.
- The status and reliability of the source: If sources are untrustworthy or have an axe to grind, the reporter must be more diligent in verifying information. Confidential and unnamed sources can be used, but the test remains whether it was reasonable to do so.
- Whether the plaintiff's side of the story was sought and accurately reported: It’s not always necessary or possible to contact the target of a defamatory comment, but the reporter must show an effort to be fair and to get both sides of the story.
- Whether the inclusion of the defamatory statement was justifiable: The defamatory statement must be relevant to the story, but "generous scope" should be given to editorial choices made in the newsroom.
- Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth: Dubbed the "reportage" defence, this is perhaps the most significant facet of the ruling. It recognizes that the public may have an interest in the assertions and counter-charges made in debates over important issues, regardless of whether the allegations are true. While the law still punishes those who repeat a libel, in this context the messenger would have a defence if 1) the statement is attributed, "preferably" to a named source 2) the report indicates the statement has not been verified 3) both sides of the dispute are reported fairly 4) the context in which the statement was made is reported.This may be a boon to political reporters covering heated exchanges between politicians.
- Any other relevant circumstances: A catch-all provision for other aspects of the story, including the tone of the article. Sensationalism or a critical tone may be appropriate, the court noted, and writers should not be held to "a standard of stylistic blandness …. The best investigative reporting often takes a trenchant or adversarial position on pressing issues of the day."
Finally, the "communication" part. The court has altered the term "responsible journalism" and acknowledged the definition of "journalist" is expanding in the age of the Internet. Anyone "publishing material of public interest in any medium" – bloggers included – is covered. Established journalistic practices will be used to assess the conduct of "journalists and non-journalists alike," the court says, and standards will evolve "to keep pace with the norms of new communications media."
While defamation law and its defences have always applied to the Internet, this is significant. As mainstream media struggle and publication shifts to the Internet, more professional journalists are becoming bloggers. The court has recognized this shift and its ruling also may encourage more high-quality, public interest reporting by citizen journalists.
The new defence does not give journalists, bloggers or anyone else a licence to sully someone’s reputation. The courts will demand high standards of conduct and establishing the defence could be costly – just ask the newspapers headed to trial a second time. But these decisions lessen libel chill and modernize laws that, for too long, have put reputations ahead of our need for hard-hitting journalism on important public issues.
Dean Jobb, author of the textbook Media Law for Canadian Journalists (Emond Montgomery Publications), is an associate professor of journalism at the University of King’s College in Halifax. He can be reached at firstname.lastname@example.org.