By Dean Jobb

Ontario’s Court of Appeal – the court that imported the defence of “responsible journalism” into Canadian defamation law – is being asked to use the new defence to wipe out a $1.5-million libel award against the Toronto Star.

In April the Star‘s lawyer, Paul Schabas, argued a 2001 article on cottagers’ opposition to the expansion of a golf course in Northern Ontario was an example of “serious investigative journalism that our law must protect and preserve,” and the developer’s libel claim should have be dismissed.

It’s the first time the argument has come before the Court of Appeal since last fall’s ruling on a libel award against the Ottawa Citizen, when the the court said Canada’s defamation laws must strike a better balance between the Charter right to freedom of expression and the need to protect reputations.

“Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy,” Justice Robert J. Sharpe noted in November in Cusson v. Quan (2007 ONCA 771), a ruling that follows the lead of courts in Britain, Australia, New Zealand and South Africa.

But under existing defamation law, he added, “there is simply no margin for error or allowance for the expression of views honestly and reasonable held.” The media’s defences are limited; journalists must prove facts and allegations are true or fair comment, or were made in a privileged forum or document. People can also consent to be libeled, but subjects of stories rarely incriminate themselves to the point where this defence is possible.

As a result, there’s “a powerful incentive to err on the side of caution and to avoid controversy,” as Justice Sharpe put it, creating “a chilling effect” on free speech.

“A newspaper that has properly investigated the story and has every reason to believe it to be true still walks on thin ice. The fear or risk of being unable to prove the truth of controversial matters is bound to discourage the publication of information the public has a legitimate interest in hearing,” the judge wrote.

“There is a very real difference between what a speaker honestly and reasonably believes to be true and what can be proved to be true in a court of law. The threat of litigation under a legal regime that leaves no margin for error, even where the speaker took all reasonable steps to verify the facts, discourages free and open debate on matters of public importance.”

Journalists have been complaining about this for years, and waiting for the day the responsible journalism defence pioneered in Britain a half-dozen years ago would reach Canada.

Here’s how the new defence works: if the story is important enough, and the journalists involved have done their jobs thoroughly and properly, a libel action may fail even if the story is wrong.

This is not a defence for the faint of heart or for reporters who are sloppy or fail to keep an open mind as they do their stories. A journalist’s actions and methods will be put under the microscope. So dust off the ethics handbooks and make sure your methods conform to your news organization’s code of conduct.

I’ve always told my students that good journalism – stories that are accurate, fair, balanced and deal with matters of public interest – offer the best defence to a libel suit. This responsible journalism defence encompasses all four.

When assessing whether the defence applies, judges must consider ten factors that were first formulated in the British case of Reynolds v. Times Newspapers Ltd. [2001] 2 A.C. 127.

They are, to quote the Reynolds ruling:

The British courts have made it clear that journalists need not satisfy all of these requirements in order to claim the defence. In 2007 the House of Lords cleared the Wall Street Journal of libel even though it did not wait for comment from a Saudi Arabian businessman accused of funding terrorism (Jameel v. Wall Street Journal Europe Sprl, [2007] 1 A.C. 359).

How the defence will play out in this country remains to be seen. The Ontario Court of Appeal has yet to rule on the Star‘s bid to overturn the $1.5-million libel award it faces.

The Citizen established the precedent but, ironically, lost its bid to overturn a $100,000 libel award to a policeman accused of hampering rescue efforts at Ground Zero after the September 2001 terrorist attacks. Since the newspaper did not raise the responsible journalism defence at trial, the Court of Appeal ruled, it could not use it after the fact.

The Supreme Court of Canada has agreed to hear the Citizen’s appeal, and the result will be a ruling that’s binding on judges across the country.
Will the high court endorse the responsible journalism defence or will Canada ignore a growing body of sound, progressive rulings on libel law? Stay tuned.

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Dean Jobb, an assistant professor of journalism at the University of King’s College in Halifax, is author of Media Law for Canadian Journalists, available from Emond Montgomery Publications.