SCC creates new libel defence of responsible communication

The Supreme Court of Canada has created a new libel defence – the defence of responsible communication on matters of public interest. In ordering new trials in libel actions against two Ontario newspapers, the court introduced the British defence of responsible journalism with a new name and some made-in-Canada modifications. The defence is based on the conduct of the journalists and editors who produce the story, and can defeat a libel claim even if some facts and allegations published or broadcast turn out to be wrong or false.

The court established a broad definition of the public interest, saying it is not limited to stories on politics and can apply to stories of interest to a limited audience if the subject is of public importance. The rulings set seven criteria for judging whether journalists acted responsibly, including the seriousness of the allegations, the reliability of sources and whether the person defamed was given a chance to respond. There are two other important aspects to the ruling:

1. It establishes the defence of “reportage,” allowing the media to report statements and allegations, regardless of whether they are true or can be proven, if the public interest lies in having the comments aired. To claim the defence, sources should be named, both sides of the issue must be fairly represented and the report should indicate the facts or allegations have not been verified;

2. Not only journalists can claim the defence. The court says bloggers and anyone else “publishing material of public interest in any medium” are covered. Established journalistic standards offer a guide to assessing 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.”

Read the rulings in Grant v. Torstar Corp. and Quan v. Cusson

Read the National Post report on the rulings.