It has been almost two years since the Supreme Court of Canada created the libel defence of responsible communication on matters of public interest — long enough for at least three courts to weigh in on what journalists must do to meet its criteria. In this column in the upcoming issue of the CAJ's Media magazine, J-Source's law section editor Dean Jobb explores how the new defence is being interpreted.

It has been almost two years since the Supreme Court of Canada created the libel defence of responsible communication on matters of public interest — long enough for at least three courts to weigh in on what journalists must do to meet its criteria. In this column in the upcoming issue of the CAJ's Media magazine, J-Source's law section editor Dean Jobb explores how the new defence is being interpreted.

One win, two losses in two years. That’s the media’s track record in the courtroom to date when battling libel claims with a new legal weapon – the defence of responsible communication on matters of public interest.

The Supreme Court of Canada created the defence in December 2009, importing the concept of “responsible journalism” developed in the British courts and giving it a Canadian twist by making it available to anyone who “communicates” information on important public issues, including bloggers and citizen journalists.

A review of court rulings and news reports shows journalists have used the defence (or its predecessor, responsible journalism) in at least three cases decided since 2009. Each one offers insights into how judges and juries are interpreting the new defence and what reporters and editors must do to demonstrate they have acted responsibly.

The defence is designed to take some of the “chill” out of libel, shifting the focus from what was published to the steps taken to produce a fair, accurate and balanced report. In overturning libel awards in Grant v. Torstar Corp., 2009 SCC 61, and Quan v. Cusson, 2009 SCC 62, the Supreme Court sought to modernize the law and promote free speech by protecting defamatory statements and allegations – even erroneous ones – on issues the public should know about.

The defence applies to stories on any subject of public interest. Judges in the three recent cases ruled that allegations police brutality and fraud, and a report on a fraud alert issued by police, meet this definition. 

The next step is to examine whether the journalist acted responsibly. Are the sources solid and unbiased? Was it urgent that the story be told, perhaps before all the facts could be known? Was it necessary to include the defamatory statement? Did the journalist strive to be fair, present both sides of the story and seek out the person defamed for comment?

There is also a “reportage” facet to the defence – statements and allegations will be protected if the public interest lies in knowing they were made, rather than establishing whether they are true. To qualify, a news report must not present allegations as fact and must convey both sides of a dispute.

While the first case predates the rulings in Grant and Quan, the judge applied the similar responsible journalism test and his findings illustrate what the courts expect of journalists. In 2003 the now-defunct Kootenay Chronicle in Nelson, B.C., published articles accusing two RCMP officers of assaulting a man who was under arrest. The newspaper lost and the officers won a total of $42,000 in damages (Reaburn v. Langen, 2008 BCSC 1342, upheld on appeal, 2009 BCCA 465).

The judge found the stories came up short on several fronts. The main source of the allegation was the arrested man, and the reporter “failed to recognize in him a person with an axe to grind.” Worse, there was “nothing at all neutral” about the story, which “did not simply raise questions, but adopted allegations as fact.” The judge also criticized the journalist’s use of “inflammatory phrases,” including describing the “heavily armed” officers as having “the weight of the establishment on their side” and a prediction that “the dust of the circling wagons” would prevent justice from being done.

B.C.’s Court of Appeal agreed, reminding journalists there’s no magic in using the word “alleged” and allegations must not be reported as if they are proven or true. “A journalist cannot succeed in his defence of responsible journalism by the rote use of the term ‘alleged,’ where the whole thrust of the article is written as fact.”

            The second case, also from B.C., arose from articles published in The Peak, the Simon Fraser University student newspaper. In 2010 the province’s Court of Appeal upheld an award of $30,000 in damages to an administrator accused of mishandling the finances of a students’ union (Hansen v. Harder, 2010 BCCA 482, upholding Hansen v. Tilley, 2009 BCSC 360).

The trial judge rejected the defence of responsible journalism (the responsible communication test had been created by the time the appeal was heard; the appeal court applied the new defence but it, too, failed). The courts faulted the student journalists for relying on second-hand information and the results of a forensic review that contained serious errors.

The paper also published a report – with the in-your-face headline, “Busted!” – implying the police were investigating the administrator for suspected fraud. This turned out to be false, and the appeal court said the paper should have made “every effort” to contact the administrator before publishing such a serious allegation. While the reporter involved insisted he sent emails and left voice messages seeking comment from the administrator, the trial judge and the appeal court were not convinced and expected to see a record of all phone calls and emails.

Finally, the defence of reportage failed because the articles did not present both sides of the issue fairly or indicate that the allegations had not been proven.

SooToday.com, an independent local news site based in Sault Ste. Marie, Ont. won the lone victory. After a two-week trial in 2010, a jury found the responsible communication defence protected its report on a fraud alert issued by police. The alert revealed that a businessman who planned to use two local resorts to run conferences and programs for charitable organizations had been convicted a decade earlier of fraud.

Trial evidence showed SooToday.com was thorough in its research – it commissioned an independent analysis of the resort plan, consulted more than 20 sources and tried to locate the businessman for comment.

What are the lessons for journalists tackling stories that could attract a libel suit? Stick to the facts and avoid trumped-up words and descriptions. Report that unproven allegations are just that – unproven. Be fair and present all sides of the story. Make every effort to contact the target of an allegation and keep a record of each attempt.

That’s the kind of advice you can get from any textbook on journalism ethics. And it’s clearly the level of professionalism the courts expect of a responsible journalist.

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Dean Jobb, an associate professor of journalism at the University of King’s College in Halifax, is author of the newly updated reference guide Media law for Canadian Journalists (Emond Montgomery Publications 2011). His website is www.deanjobb.com