Canada’s Supreme Court establishes new libel defence
by Glen McGregor
Photograph by: Pat McGrath, The Ottawa Citizen
The court ruled in favour of the Ottawa Citizen and other media organizations by creating a new defence from defamation lawsuits based on “responsible communication” of issues of public importance.
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. 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 that defamation law must balance freedom of expression on these issues 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 a unanimous decision.
The court decision was based on two cases, one involving the Toronto Star and another on Ottawa Citizen reports about a former OPP officer Danno Cusson.
The Citizen stories reported allegations Cusson had misrepresented himself and his dog as a trained RCMP sniffer-dog team when they went to World Trade Center in the weeks after the 2001 terror strikes.
Cusson won a libel case against the Citizen in 2006 and was awarded $100,000. The newspaper appealed to the Ontario Court of Appeal. The court said there should be a defence of responsible journalism, but said because the Citizen hadn’t presented it, the award to Cusson stood. The Citizen challenged the award to the Supreme Court.
The decision handed down Tuesday upheld the new defence and, contrary to the Court of Appeal, said it should have been available to the Citizen. The court ordered a new trial in the Cusson case and the Toronto Star case.
Citizen lawyer Richard Dearden said the decision marked a major advance in defamation law.
“Had this new defence not been established, we’d be in the Dark Ages,” he said.
“We’re now in the 21st century in terms of freedom of expression in the country. The SC has brought Canada in line with other Commonwealth countries.”
He also noted that the court found the Cusson case clearly involved issues in the public interest.
The case will be heard again with the Citizen free to claim the new defence, should Cusson decide to proceed. Ronald Caza, the lawyer representing Cusson, said his client would consider the ruling before saying how he would proceed.
The court said it was striking the “middle road” between the much looser defamation laws in the United States and the existing law, which required media organizations to prove the truth of every allegation.
Dearden said he believes the decision could effectively raise the standards of journalism in Canada because of the requirement to act responsibly.
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.
The court said the definition of public interest to which the defence applies does not necessarily mean something of interest to the public. The private lives of public figures are not necessarily covered by the defence.
Once a judge establishes 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.
The Ontario court had called the defence “responsible journalism,” but the Supreme Court said that the title was too narrow and should also encompass communications made by Internet bloggers and others who are not journalists.
In defamation cases heard before a jury, the judge will decide whether the issue is in the public interest and juries will decided whether the reporter acted responsibly.
Media lawyers hailed the decision as groundbreaking.
“This is a great step forward in democratic and open discussion,” said Paul Schabas, who represented the Toronto Star.
“This means there will be more information put out to the public to scrutinize what public officials do and debate matters of public interest.”
Peter Jacobsen, lawyer for the Globe and Mail, an intervener in the two cases, said the decision will encourage freer debate on public issues by journalists and others without the fear of expensive litigation.
“They don’t have be afraid of being sued just because they got it wrong,” he said. “Now, if they’ve done everything they can reasonably do to get it right, they can publish without fear of horrendous libel damages against them.”
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