Ruling creates new defamation defence

For the London Free Press - January 25, 2010 Read this on Canoe

“Responsible communication” expands media freedom of expression and opens door to more frank discussion of matters of public policy

If you don't have anything nice to say, be sure to say it in the name of public interest.

The Supreme Court of Canada recently changed defamation law with its ruling in Grant v. Torstar. The case dealt with allegations that a wealthy land developer in Northern Ontario had bypassed regular government approval procedures for building a golf course, courtesy of friends in high places.

The Charter of Rights and Freedoms guarantees freedom of expression. But there's a limit to what one can express.

Under defamation law, if a statement unjustifiably compromises a person's reputation, that person can sue for damages.

In recent years, there has been concern that defamation law has resulted in media outlets suffering "libel chill." The suggestion is the media have toned down or left out what they wished to say, for fear of being sued.

In the Grant v. Torstar decision, the Supreme Court created a new defence to defamation. This "responsible communication" defence effectively expands the freedom of expression afforded to media and opens the door to more frank discussion of matters of public policy.

To succeed, the new defence requires that the publication must be a matter of public interest, and the publisher must have been diligent in trying to verify the allegations. Factors to be considered when measuring diligence are:

  • the seriousness of the allegation
  • the public importance of the matter
  • the urgency of the matter
  • the status and reliability of the source
  • whether the plaintiff's version of the story was asked for and accurately reported
  • whether including the defamatory statement was justifiable
  • whether the statement's public interest lay in the fact that it was made rather than its truth
  • other relevant circumstances.

In other words, it is now possible to inaccurately report something of public interest, but have a viable defence to defamation so long as you take steps to get your facts straight at the outset.

This change is unlikely to result in a media free-for-all. In the decision, Chief Justice Beverley McLachlin cautions "The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause."

It is noteworthy that bloggers are explicitly included in this test. Whatever uncertainty existed previously about allegations in cyberspace, the law is now clear: if you make controversial claims, you must do due diligence, however you publish them.