Courtesy of the late December Supreme Court of Canada decisions in the Grant v. Torstar Corp. and Quan v. Cusson defamation actions we now have a new defamation defence known as responsible communication on matters of public interest.

These clearly written decisions are groundbreaking and must be considered as huge victories for the media, allowing the media to get facts wrong, but still successfully defend a defamation action. But, nothing in life is truly free and there is a price to pay for the right to be wrong.

While editors like to think they know what stories are “on a matter of public interest” the SCC has made it clear this is a job for the judiciary.  “The judge decides whether the publication was on a matter of public interest.” Also, I’m just a bit concerned with the statement that “[s]ome segment of the public must have a genuine stake in knowing about the matter published.”

That word “genuine” seems open to misinterpretation. I hope courts will determine the public interest issue in a broad manner consistent with the rationale behind the need for this new responsible communication defence. Too narrow an approach will stifle this defence.

The price to be paid by the media arises when the trier of fact determines whether “the standard of responsibility has been met.” The SCC has thereby invited the jury into the newsrooms of the nation. Juries must examine factors such as the public importance of the matter, the urgency of the matter, whether inclusion of a defamatory statement was “justifiable,” and “any other relevant circumstances.”

Awfully open-ended, I’d say. So it would be open for a jury to deny the responsible communication defence if it felt the story just wasn’t quite important enough to merit the coverage. Perhaps the reporter should have used different language, spoken to different sources, asked different questions, or taken different steps to verify the allegations. Application of the defence will be rather uncertain.

How will jurors determine these issues? In part, based on counsels’ arguments, but likely we’re going to be seeing a great deal of expert testimony from senior journalists on the standards of responsible journalism.

Let’s hope we have some defamation actions decided by judge alone so we can obtain detailed reasons on the standards of responsible journalism.  In time we’ll have a body of principles that can guide journalists and future juries. Until then this new defence must be considered to be entirely unpredictable in its application. I don’t know how counsel will be able to render meaningful opinions on the application of the defence.

And what is to be done if a publication contains a mistake? Suppose the mistake is pointed out to the publisher? Does responsible journalism end with the publication of the article or is it a process that continues to the end of the trial?

Wouldn’t “relevant circumstances” include the publisher’s actions after being advised of an error? Wouldn’t it be irresponsible for a publisher to refrain from undertaking a proper investigation or neglecting to publish a correction when warranted?

This exercise becomes more complex when we consider issues of the Internet. How does a publisher bring a correction to the attention of all those who have read the article on the myriad of sites on which the article has been picked up? Should versions of an article containing an obvious error be removed from the Internet? How exactly does one accomplish that feat?

What about the ubiquitous readers’ comments we see below electronic versions of an article? Could the content of these comments have a bearing on the application of the responsible communication defence? I’d think so. More significantly, a juror might think so.

Finally, I’m troubled by the SCC’s statement that malice defeats the responsible communication defence. “A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly.” Malice also defeats fair comment and qualified privilege defences. Malice is one of those concepts that the SCC must reconsider and limit one day.

Based on previous decisions, malice is an incredibly broad concept. Findings of malice are frequently made based on errors in judgment or such vague concepts as having an improper motive.

Surely the rationale for a responsible communication defence also serves as a rationale for precise limits being imposed on the definition of malice. Constitutional protection of free speech should not be lost based solely on findings of so-called improper motives or errors in judgment.  

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Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College.  His e-mail address is ashanoff@gmail.com.