Two hundred years after the death of Thomas Paine, and three days before Christmas, the Supreme Court of Canada issued a pair of decisions that marks the most important advance in freedom of expression, and in particular, freedom of the press, in recent Canadian law.
In Grant v. Torstar Corp. 2009 SCC 61, and Quan v. Cusson, 2009 SCC 62, the Supreme Court of Canada confirmed a new defence of responsible communication on matters of public interest. This new defence will protect journalists, publishers, and, importantly, citizen-journalists and bloggers, from a defamation claim if the defendant can show that he or she acted responsibly in reporting on a matter of public interest even if the facts turn out to be wrong.
Further, the Supreme Court of Canada recognized the concept of “reportage”: a journalist or publisher will generally not be liable for quoting defamatory statements made by a person, if the defamatory statements are repeated in a fair manner, and are repeated in order to report on what was said in a given dispute.
The test for the defence of responsible communication on matters of public interest
The defendant must prove two elements in order to establish the defence for responsible communication:
(a) the publication must be on a matter of public interest; and
(b) the publication was responsible, in that the defendant was diligent in trying to verify the allegations, having regard to all of the circumstances.
1. Was the publication on a matter of public interest?
To qualify as a matter of public interest, the public must have some substantial concern about the subject matter, because it affects the welfare of citizens, or because it has attracted considerable public notoriety or controversy. Some segment of the public must have a genuine stake in knowing about the matter: mere curiosity or prurient interest is not sufficient.
In Australia and New Zealand, where the responsible journalism defence was first developed, the defence is limited to government and political matters. The Supreme Court of Canada, however, confirmed that in Canada the defence is much broader. The public has a genuine stake in knowing about many matters, ranging from science and the arts, to the environment, religion, and morality and the responsible communication defence extends to protect responsible but erroneous statements concerning all areas of social discourse in which the public has a vested interest. Further, the defence protects reports on persons who are not necessarily famous public figures, so long as the report concerns a matter of public interest.
2. Was publication of a defamatory communication nonetheless responsible?
The Supreme Court of Canada provides a list of considerations that will guide the trial court as to whether the publication of the defamatory communication was nonetheless responsible:
(i) The seriousness of the allegation: If the allegation in the article is particularly serious, such as an allegation of corruption or criminality, the court will expect the defendant to show greater due diligence in researching the allegations.
(ii) The public importance of the matter: Not all subjects are of equal public interest. Where the subject matter is of great public importance, the court may more readily conclude that it was responsible to publish the article on the basis of what was then known.
(iii) The urgency of the matter: Given the relative importance of the subject matter, did the public needed to know the information when it did, based upon the amount of due diligence conducted by the defendant journalist? This factor is considered in light of what the defendant knew or ought to have known at the time of publication. If a reasonable delay could have helped the defendant to find out the truth and correct the defamatory falsehood, without compromising the story’s timeliness, the defendant will have a more difficult time showing that he or she communicated responsibly.
(iv) The status and reliability of the source: The less trustworthy the source, the greater the need to use other sources to verify the allegations. If the source has an axe to grind, or insists on confidentiality, the court may expect the defendant to undertake further investigations to back up the allegations.
(v) Whether the plaintiff’s side of the story was sought and accurately reported: This factor has been recognized as the most important consideration, based upon balance and fairness. In many cases, it may be unfair to publish defamatory allegations of fact without giving the target an opportunity to respond. That being said, if the target of the allegations has no special knowledge about those allegations (such as, for example, an allegation that the target is being investigated by the police), this factor may be of little importance.
(vi) Whether inclusion of the defamatory statement was justifiable: Was it really necessary to include the defamatory statement in order to communicate on the matter of public interest? This consideration should not be applied strictly, and editorial discretion should be granted a generous scope.
(vii) Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”): It is generally not a viable defence that one is merely repeating another person’s libel: the person who repeats the defamatory statement is just as liable as the maker of the original false statement. This repetition rule does not apply, however, to fairly reported statements whose public interest lies in the fact that they were made, rather than in the truth or falsity of the reported statements. In other words, the defendant is entitled to report that certain persons made defamatory statements. This exception to the repetition rule is known as “reportage”. In order to rely on the reportage exception, the defendant should:
(a) attribute the statement to a person, preferably identified, thus ensuring some accountability;
(b) confirm, expressly or implicitly, that the truth of the statement has not been verified;
(c) set out both sides of the dispute fairly; and
(d) provide the context in which the statements were made.
The above seven considerations are the most important considerations, but they are not exhaustive: each defamatory statement and each set of facts of due diligence must be assessed individually, and the court may consider other matters, and place different weight on those considerations, in concluding whether or not the communication was made responsibly.
Another potentially relevant consideration is the tone of the article. But the Court cautions not to put too much weight on this factor. While distortion or sensationalism may undermine the defendant’s claim of responsible communication in the public interest, the Supreme Court concludes that “the defence of responsible communication ought not to hold writers to a standard of stylistic blandness.” Nor is the defence lost if the communicator takes a partisan or adversarial position in the article.
Defence extends beyond professional journalists, and includes online media
As reflected is the name of the defence – responsible communication on matters of public interest – the defence is not limited to professional journalists and traditional paper-based publications. The Supreme Court confirms that the new defence is “available to anyone who publishes material of public interest in any medium”. It extends to bloggers and other online media, even though such internet-based communications are potentially much broader, more permanent, and may be more harmful than traditional print media.
For now, bloggers and citizen-journalists should expect to be held to the same standards of responsible journalism, and the same legal considerations as set out in the factors above, as would be a professional print journalist. In other words, the test should be an objective one, and should not be lowered or altered with respect to non-professional journalists. The Supreme Court, however, anticipates that “the applicable standards will necessarily evolve to keep pace with the norms of new communications media”.
The Cusson and Grant decisions confirm the importance of generally accepted practices of responsible and fair journalism. The considerations provided by the Court, like the Reynolds factors provided by the House of Lords in England, provide a useful checklist for journalists reporting on controversial facts that could lead to a defamation lawsuit. Just as important as following the steps of responsible journalism is the documentation of those steps. When reporting on a controversial issue, not only should due diligence be carried out, but the journalist should secure evidence that such due diligence was carried out. Similarly, pre-publication legal advice should look at not only on the contents of the proposed article, but also at the steps taken to investigate and verify the contents of that controversial article.