Freewheeling debate on matters of public interest is to be encouraged and must not be thwarted by ‘overly solicitous regard for personal reputation’
Chief Justice Beverley McLachlin,
Supreme Court of Canada
• New legal defence for journalists against libel
• Protection for bloggers too
• Public interest more important than personal reputation
• Protection even if all statements cannot be proven to be true
Canada has struck a blow for free speech against the repressive use of libel suits as a gag. In landmark and unanimous rulings last week, a full Supreme Court came out 9-0 in two parallel cases, siding with free speech and serious investigative journalism in the public interest.
It created a new legal defence against libel suits that protects responsible journalism — and specifically extends this protection to bloggers, not just journalists, writers and broadcasters.
The Supreme Court of Canada said in that contest between free expression and protection of reputation, “free expression decisively won the day.”
The decision makes these notable points:
- A new defence of “responsible communication” in the public interest;
The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality
Supreme Court of Canada
- Protection for free expression even if every statement cannot be proved to be completely true, if efforts were diligently made to establish the accuracy of information in the reports
- Protection to include bloggers, who are specifically mentioned in the judgement — and by extension almost every citizen, now that the Internet turns everyone into something like a journalist and publisher
- That freewheeling debate on matters of public interest must be encouraged and not thwarted by undue regard for personal reputation
- A statement of eight factors to consider when judging whether a publication had acted responsibly.
The decisions are a victory for The Ottawa Citizen and The Toronto Star, which had fought with Canadian media organisations and the civil rights association to bring about a defence for responsible journalism.
Canada has had one of the strictest libel regimes among common law countries — more strict than England, where “libel tourism” has begun to mushroom and where newspapers (notably the Guardian) and civil liberties organisations have campaigned for libel laws to be reformed to be closer to the protections affored in the United States. The decisions finally bring Canada more in line with the UK, Australia, New Zealand and South Africa.
Condensed from the Toronto Star
Court backs press in major libel ruling
While the law must protect reputation, the current level of protection — in effect a regime of strict liability — is not justifiable.
Supreme Court of Canada
The high court said the current law of defamation in Canada … provides no protection for statements “if they cannot be proven to be true.” The law should be changed to provide “greater protection” for statements that are “reliable and important to public debate.”
Insisting on total accuracy in reporting may prevent communication of facts a reasonable person would accept as reliable “but also of inhibiting political discourse and debate on matters of public importance and impeding the cut and thrust of discussion necessary to discovery of the truth.”
“Public” interest, the court said, is not merely that which titillates the public, such as the private lives of well-known people. “Mere curiosity or prurient interest is not enough,” (chief justice) McLachlin wrote. “The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality,” the court said.
This is a defence that you as journalists never had before and also bloggers or anybody using Twitter — whatever.
Defence lawyer
The new defence does not go as far as the U.S. model, which requires a public figure plaintiff to show “actual malice” on the part of a reporter. The Supreme Court of Canada said in that contest between free expression and reputation protection, “free expression decisively won the day.”
The high court said the “middle road” it has chosen provides a “a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society.”
Ronald Caza, the plaintiff’s lawyer in the case against the Ottawa Citizen, called it a “groundbreaking decision” that will now shift the focus onto journalists and their practices.
The Citizen’s lawyer Richard Dearden said the ruling is a “huge victory” that favours the publication of stories in the public interest, and will have the effect of increasing journalists’ standards of practice, because “you have to be responsible.”
I don’t think you can say ‘no comment’ any more
Defence lawyer’s reaction
“You can’t phone at midnight and the presses are going to roll two minutes later and (say) well, we couldn’t reach that person. That won’t be responsible. But if you’ve given them fair opportunity to respond and they choose not to, that’s up to them, you’ve done your job.”
“It will be interesting to see how these communications advisers now are going to advise their clients. I don’t think you can say ‘no comment’ anymore.”
8-point test for responsible reporting
From the NY Times’s report ‣Canadian rulings revise law on libel:
The court also offered very broad suggestions for determining if a newspaper article, broadcast news report, blog posting or any other form of communication was in the public interest and thus potentially covered by the new libel defense — regardless of whether its author is a professional journalist. But Mr. Nott acknowledged that this standard might prove to be a matter of further public and legal debate.
“It’s going to have a significant impact on the relationship that exists between the media and the public,” said Ronald F. Caza, the lawyer who represented the former police officer. Mr. Caza said that the subjects of news stories “may have to be very proactive to make sure that relevant information is provided to journalists.”
Canadian Rulings Revise Law on Libel
Eight factors for libel-case juries to consider:
• the seriousness of the allegation or whether the “stinging” statement was a passing irritant or a blow that devastates a person’s reputation and career
• the public importance of the matter
• the urgency of the matter
• the reliability of the source of information
• whether the “other side” of the story was duly sought and fairly reported. It is “inherently unfair” to publish, said the court, without giving the target an opportunity to respond
• if the statement is justifiable, necessary to the communication
• whether a reported statement is “reportage” or needless repetition of a libellous
• and any other considerations relevant to the way the story was reported
For further reading:
• CBC (Canadian Broadcasting Corporation) report:
He added that the ruling shifts the focus from whether the allegations were true to what the journalist did to ensure facts were true. He suggested that if a journalist is alerted ahead of publication that his or her facts are untrue, he or she would have a hard time using the new defence.
New libel defence allowed: Supreme Court
•The Globe and Mail, Toronto:
Although the court acknowledged that free expression does not “confer a licence to ruin reputation,” it argued society is best served by fearless commentary and investigative journalism.
Top court transforms press freedom with new libel defence
• Globe and Mail commentary
The law should protect reputations but citizens are not entitled “to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose.” “Productive debate,” she wrote, “is dependent on the free flow of information.”
Supreme Court enables ‘productive debate’ in Canada
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