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Canadian Law of Libel Overhauled
Published in the December 2007 issue of Litigation Notes - View Article
The Ontario Court of Appeal recently developed the common law of libel by recognizing the defence of “responsible journalism”. The OCA’s landmark ruling permits journalists to avail themselves of the defence in libel suits where they can show that they followed standards of responsible journalism when reporting on a matter of public importance.
In Cusson v. Quan, the plaintiff was a police constable who, on his own initiative, travelled with his dog to New York City shortly after the September 11, 2001 attacks on the World Trade Center to assist in rescue efforts. He was initially cast as a hero in the media for his efforts. The Ottawa Citizen ran three articles that suggested that: a) Cusson had misrepresented himself to police as being a member of the RCMP; b) he had misrepresented that his dog was trained to undertake K-9 rescue; c) the New York police had asked him to leave the Ground Zero site; d) he faced disciplinary charges for his conduct. As a result of the publication of these stories, Cusson sued the newspaper, those involved in producing the articles and his OPP supervisor (who was a source) for defamation.
At trial, the jury found that much, but not all, of what was published was true. Accordingly, it awarded $100,000.00 damages against the Citizen defendants and $25,000.00 against Cusson’s supervisor. The jury found no actual malice on behalf of the defendants.
The newspaper defendants appealed the ruling. In so doing, they raised for the first time, whether a defence of “responsible journalism” applied to situations such as this. By raising the defence for the first time on appeal, the Court of Appeal upheld the jury award and held that the Citizen could not avail itself of the defence given that it failed to lead evidence on the defence at trial.
Nonetheless, the Court of Appeal recognized the defence of “responsible journalism”, thereby forging new jurisprudence and paving the way for future litigation. Before Cusson, journalists who reported erroneous and defamatory information had only two major defences available to them: fair comment and justification or truth. Justification requires the journalist to prove that the allegations are true. Fair comment allows a journalist, absent malice, to publish a defamatory conclusion about a factual circumstance, provided the conclusion is founded on underlying facts contained in the article or that are notorious, that can be proven. Both defences are often difficult to establish, as there is often a significant amount of information available about a news story which is circumstantial in nature and cannot be formally proven in court, particularly in light of the rules of evidence and the reluctance of sources to come forward. Finally, there is another defence, the “duty and interest” defence, or the qualified privilege defence, which was often pled by media defendants but mostly rejected by the courts. This defence permits a person to publish erroneous, defamatory information about another so long as: a) the person disseminating the information has a moral, social and/or legal duty to distribute the information; b) the information is conveyed to a person who has a “real” interest in receiving it; c) the dissemination of the information is not motivated by malice. The defence often failed as the Canadian courts found that the second branch of the test is not met, given that media publications are conveyed to the world at large and not specific individuals.
In adopting the defence of “responsible journalism”, the Court of Appeal reviewed Canadian libel jurisprudence dating back to the 19th century. It also examined jurisprudence from the U.K., and the House of Lords’ decisions of Reynolds v. Times Newspaper Ltd. (2001) and Jameel v. Wall Street Journal Europe SRL (2007) which established the defence in England. The Court also reviewed libel jurisprudence in Australia, New Zealand, South Africa and the United States, all of which have concluded that “the traditional common law standard unduly burdens freedom of expression and have all made appropriate modifications to achieve a more appropriate balance between protecting reputation on the one hand and the public’s right to know on the other.” In contrast, the Court of Appeal found that Canadian jurisprudence to this point had not evolved the defence of qualified privilege for journalists. In deciding that it was time for the law of libel in Canada to evolve, the Court noted that it agreed with the courts of all the various countries whose case law was overviewed and with the Canadian judges who have gradually expanded the defence of qualified privilege, “that the inhibiting effect of traditional defamation law is incompatible with the climate of free and robust debate to which a democratic society aspires.”
It would be wrong to conclude that journalists now have a free licence to publish defamatory stories. Although the shift in focus has gone from whether the journalist has published “true” statements to an analysis of whether the journalist has acted with due diligence in publishing those statements, the key word in the defence of “responsible journalism” is in fact, “responsible”. To that end, the Court of Appeal established that the media defendant must show that it took reasonable steps in the circumstances to ensure that the story was fair and its contents were true and accurate. The Court listed ten non-exhaustive indicia, as set out in the House of Lords’ judgments of Reynolds-Jameel, as useful considerations in determining whether journalists have behaved responsibly. Some of the noteworthy factors include: the steps taken to verify the defamatory information; the seriousness of the allegation; the nature of the information and the extent to which the subject-matter is "a matter of public concern"; whether the article contained the gist of the plaintiff’s side of the story and whether the plaintiff’s comment is sought; the tone of the article; the urgency of the matter.
This case is not just of interest to the law of libel. It is also a very good example of the flexible and evolving nature of the common law. The appellants and the media intervener urged the Ontario Court of Appeal to review international jurisprudence and to reformulate Canadian law in that fashion and the Court did just that, adopting a new defence that, in the words of the House of Lords, is “a different jurisprudential creature from the traditional form of privilege from which it sprang”.
Cusson v. Quan, 2007 ONCA 771