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Responsible communication in the Canadian courts

English libel laws have been described as an ‘international embarassment’ and the campaign for libel reform has stepped up in recent months. I’m largely sympathetic with the critics – but it is interesting to note that a part of English libel law got some international approval (from the Canadian Supreme Court) just before Christmas (in a way that strengthened freedom of expression).

In the cases Grant v Torstar and Quan v Cusson, the Canadian Supreme Court adopted its own version of Reynolds privilege (which allows publishers to rely on a defence where the publication was on a matter in the public interest and where the journalist/author acted responsibly).  This defence can be relied on when the publisher cannot prove the truth of the statement. The Canadian Supreme Court specifically rejected the American public figure defence and New Zealand approach (which avoids the standard of responsible journalism).

Like the English defence, the Canadian defence will be open not just to the established media, but also the online media and bloggers. To reflect this, the Canadian defence is called ‘responsible communication’ rather than ‘responsible journalism.’ Chief Justice McLachlin emphasised the point in Grant at paragraph 97:

A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media.

This is an important point. Given that much of the online media does not have access to the resources or legal departments of the mainstream media, it is vital that their speech rights are not chilled or easily silenced with the mere threat of a libel writ.

The problem is that to benefit from the public interest defence, the defendant has to act responsibly in publishing the story. Both the English and Canadian courts have a list of factors that indicate what responsible communication/journalism requires – taking steps to verify the story, contacting the subject of the article and including the subject’s comment. Most bloggers are unlikely to contact someone for comment before publishing a story and may not have the contacts or sources necessary to verify the story.  So while anyone can rely on the public interest defence, the established media are most likely to fulfil its requirements. In any event, it is not easy for the established media to make out the defence, so I’m not sure what hope there is for everyone else.

This is why Chief Justice McLachlin’s comments above are of interest, as she suggests that the courts may develop the requirements of responsible journalism in future to fit with the online media. So maybe this will lead to the development of guidelines for responsible bloggers? Can’t see this happening here in the near future, but would be interesting to see what those guidelines look like.

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