Analysis of the Defamation Case Decisions, December 22, 2009

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In these two decisions released this morning, the Supreme Court of Canada has unanimously upheld a new libel defence of responsible communication on matters of public interest and has also afforded the Ottawa Citizen an opportunity to use it in a new trial.

Coupled with the recent decision in WIC Radio Ltd. v. Simpson, 2008 SCC 40, on the defence of fair comment, the Court has created a new legal landscape for the common law of defamation through applying Charter values. The traditional emphasis on protecting reputation has given way to greater recognition of the importance of free expression, even where someone's reputation may be injured. The Court has recognized that the requirement that any defamatory statements of fact be proven true (unless protected by privilege) unduly restricts the flow of information that is of value to the public:

		  To insist on court-established certainty in reporting on matters of public interest 
		  may have the effect of preventing communication of facts which a reasonable person would 
		  accept as reliable and which are relevant and important to public debate.  The existing 
		  common law rules mean, in effect, that the publisher must be certain before publication 
		  that it can prove a statement to be true in a court of law, should a suit be filed.  
		  Verification of the facts and reliability of the sources may lead a publisher to reasonable 
		  certainty of their truth, but that is different from knowing that one will be able to prove
		  their truth in a court of law, perhaps years later.  This, in turn, may have a chilling
		  effect on what is published.  Information that is reliable and in the public's interest
		  to know may never see the light of day.…Fear of being sued for libel may prevent the 
		  publication of information about matters of public interest.  The public may never learn 
		  the full truth of the matter at hand. [Grant, paras. 53-54]
		  

It is simply beyond debate that the limited defences available to press-related defendants may have the effect of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth. [Grant, para. 57] While recognizing the present law's chilling effect, the Court also seeks to protect reputation, holding that:

		People in public life are entitled to expect that the media and other reporters will act
		responsibly in protecting them from false accusations and innuendo.  They are not, however, 
		entitled to demand perfection and the inevitable silencing of critical comment that a 
		standard of perfection would impose. [Grant para. 62]

 
		 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 of 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 - democractic 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, para. 65]

The Court set out a two-step process. The first step is for the presiding judge to decide "whether the subject-matter of the communication as a whole is one of public interest". The Court makes it clear that the approach developed for the defence of fair comment should apply. Further, as long as some segment of the public have a genuine stake in knowing about the matter published, that is sufficient. "Public interest" should be interpreted very broadly:

		One inviting public attention, or about 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… The public has a  genuine stake in knowing about many matters, ranging from science and 
		the arts to the environment, religion, and morality.  The democratic interest in such wide-ranging public 
		debate must be reflected in the jurisprudence. [Grant, paras. 105 and 106]   
 

1. The seriousness of the allegation

Greater diligence is required in proportion to the seriousness of the defamatory sting or privacy interests involved.

2. Public importance of the matter

Not all matters of public interest are of equal importance." [Grant, para. 112]

3. Urgency of the matter

The question is whether the public's need to know required the defendant to publish when it did. As with the other factors, this is considered in light of what the defendant knew or ought to have known at the time of publication. If a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity without compromising the story's timeliness, this factor will weigh in the plaintiff's favour." [Grant, para. 113]

4. Status and reliability of the source

The less trustworthy the source, the greater the need to use other sources to verify the allegations…The fact that the defendant's source had an axe to grind does not necessarily deprive the defendant of protection, provided other reasonable steps were taken." [Grant, para. 114]

It may be responsible to rely on confidential sources, depending on the circumstances; a defendant may properly be unwilling or unable to reveal a source in order to advance the defence."

[Grant, para 115]

5. Whether the plaintiff's side of the story was sought and accurately reported

In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond. …The importance of this factor varies with the degree to which fulfilling its dictates will actually have bolstered the fairness and accuracy of the report." [Grant, paras. 116-117]

6. Whether inclusion of the defamatory statement was justifiable

This is a matter for the jury, not the judge. "In applying this factor, the jury should take into account that the decision to include a particular statement may involve a variety of considerations and engage editorial choice, which should be granted generous scope." [Grant, para. 118]

7. Whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("reportage")

The "repetition rule" which imposes liability for publishing someone else's defamatory allegation, does not apply where there is a dispute that itself a matter of public interest and the allegations are fairly reported provided that (1) statement is attributed, (2) the fact that their truth has not been verified as indicated, expressly or implicitly, (3) both sides of the dispute are set out, and (4) the context for the statements is provided.

8. Other considerations

The factors are "non-exhaustive but illustrative guides" and "all matters relevant to whether the defendant communicated responsibly can be considered".

Not all factors are of equal value in a given case; in particular, the article's "tone" may not be relevant; writers ought not to be held to "a standard of stylistic blandness".

The range of meanings that the words are reasonably capable of bearing should be taken into account, including the defendant's intended meaning, if reasonable.

No separate inquiry into "malice" is needed for this defence.

In light of the new defence, the Court ordered a new trial for the Ottawa Citizen in the suit brought by Danno Cusson, the OPP officer would took his pet dog to New York City following September 11, 2001, and became part of the canine unit at Ground Zero. The Court had no difficulty in finding that the publications involved matters of public interest: "The Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety…the articles touched on matters close to the core of the public's legitimate concern for the integrity of its public service." (Quan, para. 31) With that judicial test met, the remaining facts for determining "responsible communication" must be considered by a jury.

Most importantly, the Court ruled that it would be unfair to deprive the defendants of an opportunity to rely on the new defence; they "deserve an opportunity to make their case to a jury properly instructed on the law as it now stands." Thus, a new trial was ordered.

Grant v. Torstar

The Court agreed with the Ontario Court of Appeal that a new trial should be held in this case as well. The publication's subject-matter was one of "public interest" since it "related to issues of government conduct", rather than merely "Peter Grant's business dealings".

The Court analyzed the critical statement, "everyone thinks it's a done deal", and found that it could be either a statement of opinion, to which the defence of fair comment could apply, or a statement of fact, which would engage the new defence of "responsible communication". The trial judge's charge to the jury on fair comment was criticized by the Court on the basis that it failed to comply with the approach set out in WIC Radio. In particular, the journalist's lack of "honest belief" in the opinion should not be a basis for finding malice, and no reference should be made to "fair-mindedness", a concept explicitly rejected in WIC Radio.

In turn, if regarded as a statement of fact, the defendants would have to adduce evidence to show that publication was responsible in the circumstances. The jury would then have to rule on the issue after being instructed on the basis of the factors set out in the Grant decision.