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Fundamental shift

|Written By Tim Shufelt

The Supreme Court of Canada has fundamentally changed defamation law placing the onus on plaintiffs to prove journalists acted irresponsibly, says a lawyer for one of the respondents.

Paul Schabas

The ruling effectively rewrites Canada’s libel laws, and affects every media lawyer in the country, says Ronald Caza. “They’ve shifted the paradigm so it is weighted more in favour of freedom of speech,” he says. “It’s a dramatic shift.”

Caza suspects the focus of defamation suits will now be on the plaintiff’s actions prior to the publication of a libelous article.

“The reaction now will likely be they need to communicate with the journalist. They need to ensure the journalist has all of the relevant information,” he says.

If the story is published regardless, and the defamation ensues, only then can a reporter and publication be said to have irresponsibly printed falsehoods, Caza says.

“The key period of time will be before publication. That will likely become a very important change.”

Caza acted on behalf of former Ontario Provincial Police officer Danno Cusson, whose $100,000 award against the Ottawa Citizen for libel was set aside by the Supreme Court ruling.

In the unanimous decision, the nine justices ruled the country’s defamation laws unduly hamper free expression in order to protect reputations.

“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,” said Chief Justice Beverley McLachlin in the ruling.

The court ordered defamation law be revised to create a new defence called “responsible communication.”

“It’s probably the most important libel decision ever decided. How often does a new defence get created?” says Paul Schabas, who represented the Toronto Star in an accompanying ruling.

A $1.5-million libel award against the Star was also set aside and a new trial was ordered in both Grant v. Torstar Corp. and Quan v. Cusson.

An Ontario developer sued the Star after a 2001 article quoted neighbours suggesting he was using his political influence to get approval for expansion of a private golf course in northern Ontario.

In Cusson, Ottawa Citizen stories claimed a police officer misrepresented himself to New York authorities when he travelled to Ground Zero with his dog to help with rescue efforts.

A jury found that many of the reported facts in the Citizen were unproven. The Ontario Court of Appeal later upheld the libel ruling, but created the defence of responsible journalism in provincial law. A version of that defence now applies to the whole country.

The SCC ultimately accepted the argument freedom of expression as outlined in s. 2 of the Charter of Rights and Freedoms dictates greater protection for journalists reporting on matters of public interest.

“In the modern context, it is argued, the traditional rule has a chilling effect that unjustifiably limits reporting facts,” the ruling said.

Schabas says the change will help to thaw “libel chill,” experienced when publications self-censor stories for fear of lawsuits when all facts cannot be absolutely proven.

“The effect of it will be there will now be news reported that in the past might not be reported,” he says. “Now you don’t have to prove the truth if it was in the public interest to report it and you report it responsibly.”

Schabas doesn’t accept the argument that added protection will give journalists free rein to publish whatever untruths they like with impunity. This is consistent with McLachlin who said in the ruling that free expression “does not confer a licence to ruin reputation.” The change merely modernizes an archaic section of law and brings Canada in line with other common law countries, including Australia, New Zealand, South Africa, and the United Kingdom, Schabas says.

In those countries, “it isn’t open season for journalists,” he says.

However, Caza says, there is no evidence Canadian media outlets are particularly chilled by the threat of defamation actions.

“It has not been established that there’s a need,” he says.

In the 150 years of defamation law that focused on truth, the system worked pretty well. Elected officials in Parliament, not judges, should make legal changes of this magnitude, Caza says.

And he says the existing defence of qualified privilege was sufficient protection in cases where the public good is better served through publication.

Schabas counters that qualified privilege is far too narrow a defence that was never intended to apply to media.

“It’s a specific defence dealing with limited communications,” he says, citing the typical example of a negative reference letter.

Privilege requires a “duty” on the part of the person disseminating the information and an “interest” in receiving the information for the corresponding party.

The court decided to ensure healthy discourse; a new defence is needed, not just for traditional news media, but also for other distributors of information, like online media and bloggers.

The availability of the responsible communication defence involves meeting two tests. Firstly, the publication in question must be on a matter of public interest, a question that will be answered by a judge alone. That includes stories “inviting public attention,” affecting “the welfare of citizens,” or involving “considerable public notoriety or controversy.”

If the first condition is met, a jury will be asked to determine if the new defence applies, while considering the following factors: seriousness of the allegation; public importance of the matter; urgency of the matter; status and reliability of the source; whether the plaintiff’s side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and any other relevant circumstances.

However, the court was not united on the decision that responsible journalism matters should be heard before juries.

“This exercise involves balancing freedom of expression, freedom of the press, the protection of reputation, privacy concerns, and the public interest. Weighing these often competing interests is a legal determination,” Justice Rosalie Abella said in the decision.

Schabas presented the same argument in court.

“The jury will be asked to engage in a balancing process,” he says. “We’ll see how they cope with this.”

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