The right to be ‘wrong-headed’

Brian MacLeod Rogers
Media Lawyer, Toronto

Brian RogersThe Supreme Court of Canada’s decision in WIC Radio Ltd. v. Simpson (2008 SCC 40) clarifies and strengthens a defence that had fallen into murky depths and had become too unreliable to be counted on when most needed. Nothing can be more important in a democracy than to have citizens feel that they can speak freely and openly about their views – however wrong-headed those views may seem to others.

The majority took a relatively safe course and restored the defence to its traditional elements. Once a defamatory statement can be characterized as a comment on a matter of public interest – which the Court accepts should be “relatively easy” to establish – defendants have to establish a “nexus” with facts that are known to listeners and readers and are provably true. These facts need only be indicated, not actually stated, in the publication or broadcast and may be so notorious that they are already understood. But they must be proven true by the defence.

The defendants must then establish that some person – “however prejudiced he may be, however exaggerated or obstinate his views” – could honestly hold that opinion. This gives a much greater latitude than the previous Canadian approach, which required a personal, subjective belief in what was stated. That created real problems when the media carried contrary views or someone engaged in a bit of devil’s advocacy to enliven and broaden the debate. As well, as illustrated by the WIC Radio case itself, a dilemma arose whenever the court decided on a meaning of the alleged libel different from what the author intended – could the author have the required subjective belief in something he never meant to say? Now, all that is really required is that there be “a nexus or relationship between the comment and the underlying [proven] facts”. This is the most important change and could prove crucial to any number of cases. As Justice Rothstein notes in his short, separate reasons: “If objective honest belief means the honest belief of anyone, no matter how ‘prejudiced…exaggerated or obstinate’ in his or her views, I cannot think of an example in which the test of objective honest belief could not be met once it is demonstrated that the comment has a basis in true facts.”

Although ruled out in the WIC Radio case, malice continues to be a basis for defeating the defence. This requires the plaintiff to prove that “subjective malice was the dominant motive for the particular comment” – that is acting on an “improper motive”. At least, the Court accepts that this will be difficult to establish, as it should be. After all, public debate can be advanced even by those with axes to grind and jealousies harboured.

Although there remains a strong belief in the importance of protecting reputation – not allowing it to be “roadkill” – there is some helpful language showing that the Court appreciates the importance of what is at stake: “the freedom of expression and debate that is said to be the ‘very life blood of our freedom and free institutions'”;  “nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest”; As was put by counsel for the intervener Media Coalition, “No one will really notice if some [media] are silenced; others speaking on safer and more mundane subjects will fill the gap”; “We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones”; “public controversy can be a rough trade, and the law needs to accommodate its requirements.”

In fact, all of paragraphs 14 to 16 and 19 to 24 help point the way for the next case on the Court’s docket – Cusson v. Quan, which deals with the public interest responsible journalism defence recently upheld by the Ontario Court of Appeal. The stakes will be even higher there.

Brian MacLeod Rogers appreared before the Supreme Court in the WIC Radio case on behalf of a coalition of media interveners – the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, the British Columbia Association of Broadcasters, RTNDA Canada/The Association of Electronic Journalists, the Canadian Publishers’ Council, Magazines Canada, the Canadian Association of Journalists and Canadian Journalists for Free Expression.