The Supreme Court of Canada’s Support of Journalism

Two recent decisions of the Supreme Court of Canada changed the law for magazines, newspapers, television, radio and bloggers.

Before these cases the issue was, prior to publishing a critical piece, “Can we prove all this in Court with its strict rules of evidence?” Now the Court has shifted to emphasize that public exchange of information is vital to modern Canadian society. If a story is in the public interest and the press has every reason to believe it is true, then they are entitled to a defence if they have followed responsible rules of journalism.

A new defence has been developed in Canada called “responsible communication on matters of public interest”. It is called this because it does not just apply to journalists — it also applies to bloggers and anybody communicating to the public.

These cases represent an essential shift in the law away from the protection of individual reputation to supporting the concept of the ventilation of discussion over matters of public interest:

Having considered the arguments on both sides of the debate from the perspective of principle, I conclude that the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law — in effect a regime of strict liability — is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. But such communications advance both free expression rationales mentioned above — democratic discourse and truth finding — and therefore require some protection within the law of defamation. When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know. [Grant v. Torstar Corporation, para. 65]

The matter must be of public interest which is one in which the public has some substantial concern because it affects the welfare of citizens or one to which considerable public notoriety or controversy has attached. Mere curiosity or prurient interest is not enough.

The test in the lawsuit will be whether the editors and the reporters have acted responsibly in producing the story. However, the Court carefully emphasizes that it doesn’t wish to second guess editorial decisions provided that the publisher has acted responsibly in protecting the subjects of the article from false accusations and innuendo.

The Court accepts the concept that some stories must be published quickly but the plaintiff’s side of the story must be sought and the response accurately reported.

The cases make clear it will be more difficult for the target of a story to duck reporters in order to kill the story. There will be fewer “no comment” responses. A lawyer will most probably advise the plaintiff to talk to the reporter. The law requires the journalist to seek the plaintiff’s side of the story and report it accurately. One result of this is that the target is obliged to talk — he/she can refuse but in that event a Court won’t be critical of the publication not setting out the target’s side of the story.

The Court also envisaged articles that are punchy and the following statement is a breath of fresh air:

… While distortion or sensationalism in the manner of presentation will undercut the extent to which a defendant can plausibly claim to have been communicating responsibly in the public interest, the defence of responsible communication ought not to hold writers to a standard of stylistic blandness … Neither should the law encourage the fiction that fairness and responsibility lies in disavowing or concealing one’s point of view. The best investigative reporting often takes a trenchant or adversarial position on pressing issues of the day. An otherwise responsible article should not be denied the protection of the defence simply because of its critical tone. [Grant v. Torstar Corporation, para. 123]

Remember that the Court never goes as far as the American law which has nothing whatsoever to do with our situation — don’t think or talk about American law when you are speaking about Canadian obligations or liabilities.

The odd wrinkle in these decisions is that they expressly apply to bloggers. It is not a defence for journalists alone. So if the matter is of public interest, the blogger gets the benefit of the defence. Yet the blogger is rarely part of a structured disciplined news organization. The picture of a blogger phoning the subject of a blog and identifying what is going to be said in the blog and then reporting the response fairly is an interesting concept.

What do you say to the aggressive blogger who has been on your case for ages?

I don’t know. We’ll see.

The Court in an aside has given the blogger the status of a journalist.

Grant v. Torstar Corporation 2009 SCC 61
Quan v. Cusson 2009 SCC 62