This morning the Supreme Court of Canada established a new defence in defamation cases in Grant v. Torstar Corp., which it is calling the "responsible communication" defence. The defence is designed to provide greater protection for communications on matters of public interest. The court establishes several conditions to the test, including the scope of its application. In a big win for new media and bloggers, it concludes that the defence applies broadly:
A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented 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.
The court then outlines the the formulation of the defence, including whether the publication was a matter of public interest and a responsible communication. It summarizes the required elements as:
A. The publication is on a matter of public interest
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.
This is crucial decision for all publishers both big and small. It represents a major win for freedom of expression in Canada and should remove some of the libel chill that arises far too frequently.
Score 1 for the information age.
I can think of several other cases where this test would work.
Glad to see the light of reason from the Canadian supreme court!
While a useful distinction, I hope that this decision is not abused. Unfortunately I see some interpreting it as carte blanche to make accusations in the media and blogosphere based on dubious evidence.
All rights come with associated responsibilities. At the very least, the responsibility is to not abuse the right.
One item that may be useful in a situation such as this is the ability for the judge and jury to have an independent assessment of the status and reliability of the source. The press has the right to not reveal sources; however this poses a problem, we need to take it at their word that the source is reliable, making point B(d) moot. I wouldn’t expect them to state that they considered the source as unreliable if they cited them in a story; this would admit that they didn’t execute due diligence.
Perhaps some sort of setup for allowing for independent assessment needs to be addressed; for instance, the source is assessed by a judge who is not part of the trial; that way the identity is not revealed to the trial judge, prosecution, or jury (if present), shielding the source from retaliation (which is, as I understand it, the reason for the press’s right to not reveal a source).
Absolute defense or mitigation?
It seems from the phrasing that the rule applies where a statement is found to be, in law, “defamatory” – so the defense applies after that finding. Will it completely negate any remedy for the defamation, or just offset it on some sliding scale of mitigation?
I don’t understand the concept of libel chill
A libel must be false.
There SHOULD be a chill on the publication of false assertions
which defame people.
Are you somehow saying that libel law chills the publication
of true stories about people? That is just not the case.
All that libel law does (scratch that: did) is caution authors
and publishers of defamatory statements that they better
have their facts right, because defamation is serious and usually
irreparable harm. I honestly don’t see what is wrong with
that caution. It prevents unjust harms from occurring.
Defamation is easy: “When did you stop beating your wife, sir?”
It now got a lot easier in Canada.
I believe the idea of a ‘libel chill’ is because the law treats journalists and non-journalist differently.
Until now journalists worked for newspapers, magazines and television. Bloggers who didn’t work for a member of the Fifth Estate were not considered journalists and therefore did not have their protections.
The SoC just indirectly changed the definition of journalist so it wasn’t limited to who you worked for, but whether you were reporting news and noteworthy material that was in the public interest.
Independent bloggers beware
I think that bloggers â€“ especially independent bloggers who are not affiliated with large news networks or publishing companies â€“ need to understand these new guidelines. There are thousands of bloggers in Canada, who probably think that they know what they can and can’t say online, but they would be wise to read the Supreme Court decision. If an aspect of the ruling is unclear, then legal council should be sought. It’s easy to write a diatribe against someone (or a company), and easier still to hit the send key. But with this expanded â€˜freedom of expression’ comes a heavy burden or responsibility.
In response to the commentator who said “Are you somehow saying that libel law chills the publication
of true stories about people? That is just not the case.”
Unfortunately it is the case. Ask anyone who has been threatened with a libel suit if they refused to withdraw a comment or apologize for what they said. Libel chill occurs when fair comment is dissuaded for fear that a libel suit may be initiated. Even if a person is sure of their facts, they may not have the time or money to defend a libel suit when lawyers start at $350.00 and hour. The punishment is the process, and therein lies the chill…
Malicious Defamation clame.
I have recently been named in a Defamation Case filed with the court. I have absolutely nothing to do with a questionable letter that was written by another person. I have no knowledge of the writing of this letter but for punishment for asking exposing questions on other matters, I am being named and forced to defend myself via lawyers, my time and effort. There is no evidence presented against me.Is there a less expensive and easier way out of this type of law suite, other than paying lawyers? I have spent $1500 so far for two short meetings.