What exactly does the pair of Supreme Court of Canada rulings handed down December 22 mean for journalists? An expanded definition of “public interest,” a list of the steps journalists should take to produce a solid, libel-proof story, and good news for bloggers. Dean Jobb breaks down the rulings in Grant v. Torstar Corp. and Quan v. Cusson.
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:
It all boils down to rewarding responsible, ethical reporting – being fair, using solid sources, chasing important stories. The court has simply taken many of the elements of good journalism and recognized them in law.
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 email@example.com.
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