Tuesday, December 22, 2009

Supreme Court of Canada: "Responsble Journalism" is a Defence to Libel Action

In two groundbreaking decisions today, the Supreme Court of Canada has expanded free speech protections for journalists and new media writers by affirming a new, responsible journalism defence in libel actions.

In Quan v. Cusson, 2009 SCC 62, a unanimous court held:
The defence of responsible communication on matters of public interest recognized in Grant v. Torstar Corp. is applicable where the publication is on a matter of public interest and, having regard to the relevant factors, the publisher was diligent in trying to verify the allegations. The public interest test is clearly met here, as the Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. The defendants’ liability therefore hinges on whether they were diligent in trying to verify the allegations prior to publication, and it will be for the jury at a new trial to decide whether the articles met this standard of responsibility.
Chief Justice Beverley McLachlin's ruling emphasizes that while it may not be necessary for journalists to get every single fact correct in order to escape liability for libel, a heavy onus will remain upon them to establish diligent efforts to verify information that is published:
A. The Defence of Responsible Communication on Matters of Public Importance

[28] In Grant, at para. 126, we hold that the defence of responsible communication on matters of public interest applies where:

A) The publication is on a matter of public interest, and

B) The publisher was diligent in trying to verify the allegation, having regard to:

a) the seriousness of the allegation;

b) the public importance of the matter;

c) the urgency of the matter;

d) the status and reliability of the source;

e) whether the plaintiff's side of the story was sought and accurately reported;

f) whether the inclusion of the defamatory statement was justifiable;

g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

h) any other relevant circumstances.

... [31] ...The Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. While the subject of the Ottawa Citizen articles was not political in the narrow sense, the articles touched on matters close to the core of the public’s legitimate concern with the integrity of its public service. When Cst. Cusson represented himself to the New York authorities and the media as an OPP or RCMP officer, he sacrificed any claim to be engaged in a purely private matter. News of his heroism was already a matter of public record; there is no reason that legitimate questions about the validity of this impression should not have been publicized too.

[32] That being the case, the defendants’ liability hinges on whether they were diligent in trying to verify the allegations prior to publication. As explained below, it will be for the jury at a new trial to decide whether the articles met the standard of responsibility articulated in Grant. Further evidence of the steps taken by Quan and Egan may have to be adduced in order to provide a satisfactory record upon which their conduct can be judged.

Also see the Court's ruling today in the companion case of Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 6, referenced in the Cusson decision.

National Post comments on these important rulings:

Journalists or Internet bloggers who are sued for libel or slander will no longer have to prove in court the absolute truth of every allegation in a report. Instead, they can rely on the new defence if the issue is of public importance and they took proper steps to verify the information.

The court said Canada's defamation law must better balance freedom of expression against the need to protect a person's reputation and privacy.

..."I conclude that the current law, with respect to statements that are reliable and important to the public debate, does not give adequate weight to the constitutional value of free expression," wrote Chief Justice Beverley McLachlin in the unanimous decision.

The new defence will not give free license for journalists to make mistakes. They will still have to show they acted responsibly in their reporting on public interest issues.

..Once a judge establishes a public interest, the responsibility of the reporting must be tested based on eight factors set out by the Court, including the seriousness of the allegation, the trustworthiness of the source, the urgency of the issue and the attempts taken to obtain a response from the subject of story.

For further reading, see our November 14, 2007 post on the Ontario Court of Appeal's ruling in Cusson: Ontario Appeal Court: Press Has "Public Interest Responsible Journalism" Defence to Libel.

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