Canadian Journalists for Free Expression (CJFE) welcomes today’s Supreme Court decisions offering responsible journalists and others a new defence against defamation.
“In recognizing this new defence the Supreme Court has taken a much-needed step forward in protecting free expression in Canada,” stated CJFE Board member and media lawyer Phil Tunley. “We are moving toward a balance that favours the free flow of information and informed public discussion on matters of public interest.”
“We are delighted that the Supreme Court has provided such clear guidance on this issue,” stated journalist and CJFE Board member Kelly Toughill. “These twin decisions will encourage the kind of public service journalism that is essential to a healthy society. Not only were both decisions unanimous, they contain strong language about the value of free debate and communication in Canada.”
Cusson v. Quan (Ottawa Citizen) involved the first recognition of a new defence of “public interest responsible journalism” which Grant v Torstar then built upon. This defence, widely used in countries such as the United Kingdom, protects statements of fact and opinion, even when evidence isn’t available to prove them true in court. Today’s decision extends this defence to all “public interest responsible communication” across Canada. CJFE was part of a media coalition that intervened on both cases: Quan v. Cusson and Grant v. Torstar.
The defence is available not just to journalists, but to all publishers, as the Court specifically recognizes that emerging online sources of information are important to the debate about public affairs. The Court also adopts a broad definition of the “public interest”, to include not just government and political matters, or the activities of “public figures”, but also the debate on any issue on which “some segment of the public” has a “genuine stake in knowing about the matter”.
The new defence sets out requirements that the subject matter is one of legitimate public concern, the allegation arises from a credible source and the defendant conducts itself responsibly in the circumstances. These decisions by the Supreme Court build on a previous decision delivered in June 2008 in the case of WIC Radio and Mair vs. Simpson which strengthened and clarified the fair comment defence.
Canadian Journalists for Free Expression (CJFE) is an association of more than 300 journalists, editors, publishers, producers, students and others who work to promote and defend free expression and press freedom in Canada and abroad. CJFE has a history of work on cases pertaining to media law and freedom of expression.