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Responsible Journalism Defence Comes to Canada
Published in the December 2009 issue of Litigation Notes - View Article
In the December 2007 edition of Litigation Notes we reported on the case of Cusson v. Quan, in which the Ontario Court of Appeal recognized the defence of “responsible journalism” in Canadian law. The case was appealed to the Supreme Court of Canada and was heard together with the companion case of Grant v. Torstar Corp..
The case of Cusson v. Quan involved an Ontario Provincial Police Officer who travelled to Ground Zero following the attacks on the World Trade Centre. Together with his pet dog, he engaged in rescue operations until it was discovered that he was not there in any official capacity and he was ordered to leave the site. While initially hailed as a hero, eventually the Ottawa Citizen published an article which suggested that he had in fact hindered the activities of the rescuers. He sued the Ottawa Citizen and a jury concluded that some, but not all, of the allegations were true and awarded him damages. The Ontario Court of Appeal upheld that decision and while stating the “responsible journalism” should be recognized as a defence in Canadian law, refused to grant a new trial because the defence had not been raised at trial.
The case of Grant v. Torstar involved Peter Grant, the owner of Grant Forest Products Inc., a company which employs 100,000 people in Northern Ontario. Mr. Grant wanted to build a private golf course on his lakefront estate, over the protests of various citizens’ groups who were concerned about the environmental impact. The Toronto Star published an article which suggested that Mr. Grant had used his connections and influence, in particular with the then premier of Ontario, to secure the necessary approvals. A jury found that he had been defamed and awarded him damages totalling $1.475 million dollars. The Ontario Court of Appeal ruled that the “responsible journalism” defence should have been put to the jury and ordered a new trial.
Both cases proceeded to the Supreme Court of Canada, which has now confirmed the existence of the “responsible journalism” defence in Canadian law although it has been assigned the new name of “responsible communication on matters of public interest”. The Reasons of the Court are given in the report of Grant v. Torstar and were written by the Chief Justice on behalf of a full and unanimous bench. Chief Justice McLachlin begins by reviewing the current law of defamation in Canada, which requires that the plaintiff prove (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person (2) that the words in fact refer to the plaintiff and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. Once these elements are established, falsity and damages are presumed and the onus shifts to the defendant to advance a defence in order to escape liability. One of the defences available is fair comment, where the statement is a matter of opinion. Where the statement is one of fact, the defences available are justification, meaning that the statement is substantially true, or privilege. Privilege may be absolute as in the case of statements made in the context of parliamentary or legal proceedings, or qualified, as in the case of statements made in reference letters or credit reports. A claim of privilege, however, can be defeated by proof that the defendant acted with malice.
The Chief Justice points out that to succeed on a defence of justification a defendant must show that the statement was substantially true, which may be difficult to do. Even a journalist who has checked sources and is satisfied that a statement is substantially true may have difficulty proving it in court, often years after the event. If the defence of justification fails the only way for a journalist to escape liability is to invoke privilege. A defence of qualified privilege requires journalists to establish a “duty” to divulge the information and a corresponding “interest” on the part of the recipient in receiving it. This kind of special relationship can be difficult to establish, given that media outlets deal with the public at large. In addition, the courts in Canada have tended to prefer reputation over freedom of expression.
Chief Justice McLachlin goes on to state that there are two basic reasons for changing the law. One is an issue of principle. Freedom of expression is guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms which guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. This guarantee of free expression has three main rationales: (1) Free expression is essential to the proper functioning of democratic governance; (2) The free exchange of ideas is an essential precondition of the search for the truth; and (3) Free expression has intrinsic value as an aspect of self-realization for both speakers and listeners. She quotes from her colleague, Justice Binnie, in another case, who stated that “an individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest”. She goes on to state that “Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law should a suit be filed… this in turn may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day”.
The Court goes on to say that the second reason for re-calibrating the Canadian law of libel is based on the jurisprudence of other countries. Chief Justice McLachlin reviews the law of various jurisdictions and finds the United States at one end of the spectrum, where the U.S. Supreme Court has ruled that a “public official” cannot recover in defamation unless it can be proven that the defendant was motivated by “actual malice”, meaning “knowledge of falsity or reckless indifference to the truth”. At the other end of the spectrum is the current Canadian situation wherein the common law defence of qualified privilege offers very little protection in respect of publications to the world at large. Situated in the middle is the path chosen by the Courts in the United Kingdom, Australia, New Zealand and South Africa, where it is possible for publishers to escape liability “…if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest”. The Chief Justice concludes that the middle course is the preferable one and that the “responsible journalism” defence should be recognized. However, it requires a new name because “…the traditional media are rapidly being complimented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets”. Consequently, she concludes that the defence should be referred to as “responsible communication on matters of public interest”.
Furthermore, she concludes that the defence should be a defence, rather than a category of privilege. This is significant because it cannot be defeated by proof of malice which makes sense, because “absence of malice is effectively built into the defence of responsible journalism itself”.
The Chief Justice goes on to summarize the required elements of the defence as follows:
“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.
Both cases were sent back for new trials.
Grant v. Torstar Corp., 2009 SCC 61 (CanLII)
Quan v. Cusson, 2009 SCC 62 (CanLII)