On Dec. 22, the Supreme Court of Canada handed down two decisions that added a new defense to the tort of defamation. No longer will journalists and other publishers be limited to the defense of truth or some form of qualified privilege. In two 9-0 judgments, Canada’s top court added the defense of responsible communication in the public interest to the country’s libel law.
Grant v. Torstar Corp.
The first case involved Ontario landowner, Peter Grant. Grant had a proposal to build a private golf course on his estate. Many of his neighbours were opposed to the plan on environmental grounds. Some were quoted in a Toronto Star article as saying that the golf course was a “done deal” because Grant had political influence and had already secured governmental approval for his plans. The reporter had contacted Grant who replied “no comment”.
Grant sued and was awarded damages at trial. The defendants were unable to prove that Grant’s use of political influence was in fact true. On appeal from the judgment, the Ontario Court of Appeal ordered a new trial, ruling that the defendants could raise the defense of responsible journalism rather than have to prove the truth of what was written.
Quan v. Cusson
The plaintiff in the second case was an Ontario police officer. Shortly after the attacks on the World Trade Centre on Sept. 11, 2001, Danno Cusson, together with his dog, showed up at Ground Zero to help out. The Ottawa Citizen reported that Cusson had misrepresented himself to U.S. authorities and quite possibly interfered with the rescue operations that were being carried out at the time. Cusson sued for defamation and was awarded damages at trial. An appeal from that decision was also taken but the Ontario Court of Appeal dismissed it. The appellate court held, as they did in Grant v. Torstar, that the defense of responsible journalism was available to the defendants but refused to order a new trial on the grounds that the defendants had not raised the new defense at trial.
Both cases were further appealed to the Supreme Court of Canada and that court rendered judgments in both cases on the same day. In both cases, the court upheld the new defense and ordered new trials. In Quan v. Cusson the Supreme Court overturned the Ontario Court of Appeal’s decision that the defense had to have been raised at trial because not only was the defense new, but the defendants in the matter helped create it.
Defense of Responsible Communication in the Public Interest
While the Supreme Court of Canada agreed with the new defense created by the Ontario appellate court, they changed the name of the defense from “responsible journalism” to “responsible communication in the public interest”. The court recognized that the law of defamation is not restricted to journalists but to bloggers and others who communicate through writing or broadcasting. With today’s technology, anyone with Internet access can publish or broadcast for public consumption and anyone who does so is subject to the same libel and slander laws that originally applied only to journalists and mainstream media outlets.
The court set down guidelines as to what is necessary to successfully raise the new defense. The subject matter must be in the public interest which is not the same thing as the public simply being interested in it. The reportage must be something that concerns the welfare of all citizens, not merely titillating or interesting. In Quan v. Cusson, the court held that whether a police officer who is entrusted with public safety acted wrongly is clearly something that all citizens should be concerned about and is therefore in the public interest.
Successful defendants must not only prove that the sources of their information are reliable but must name those sources in order to successfully defend an action on the grounds of responsible communication. They must also show that that their account is not one sided and show that they at least attempted to get both sides of the story. In Grant v. Torstar, it would be a relevant consideration that the reporter had contacted Grant in order to obtain his side of the story. The reporter cannot be held responsible for the fact that Grant, after being given an opportunity, refused to comment.
Journalists and other publishers must also state when the information that they are reporting has not been verified and statements that are merely allegations must be clearly labeled as such. Despite the fact that the information may not in the end be true, defendants can successfully defend defamation suits by demonstrating that their actions have been responsible in attempting to ascertain the truth of what the report. No longer will perfection (the truth) be required; it will be sufficient if the reporter, publisher or broadcaster has used due diligence.
These rulings have caused a fundamental change in Canada’s defamation law. While journalists, bloggers and others do not have free reign to impugn the reputations of others, the notions of free speech and freedom of expression have been broadened to ensure a more vigorous debate of political and other issues that are clearly important to society.
Souces: Grant v. Torstar Corp., 2009 SCC 61
Quan v. Cusson, 2009 SCC 62
Arthur Weinreb - Weinreb is an author, associate editor and columnist with Canada Free Press and the Canadian Affairs Feature Writer for Suite 101.
Join the Conversation