“Responsible communication” as a libel defence for reporters and bloggers: Supreme Court of Canada

Toronto Star,

In a landmark ruling on freedom of expression, the Supreme Court of Canada has created a new legal defence to libel lawsuits that would shield journalists who fairly and responsibly report stories of public interest.

The new defence, dubbed “responsible communication” by the country’s top court, gives greater protection to broadcasters, writers and bloggers who do a form of reporting due diligence.

It is a huge legal victory for the Toronto Star, which along with a broad coalition of Canadian media outlets, and the Canadian Civil Liberties Association, had called for just such a defence.

The decision breaks new ground for Canadian common law, bringing it in line with decisions in Australia, New Zealand, South Africa and the United Kingdom.

CBC News (video deleted? internet archive version),

Two Ontario newspapers will get new libel trials, the Supreme Court of Canada has ruled, opening the door for journalists to defend themselves against libel using the defence of “responsible journalism.”

The Ottawa Citizen and the Toronto Star launched appeals under rules for the possible new defence that were outlined by the Ontario Court of Appeal two years ago.

Read the full SCoC “Grant v. Torstar Corp.” decision. I’ve excerpted three paragraphs 96, 97, 113 that are very relevant to blogging and bloggers (emphasis added). [HT Michael] (Prof. Michael Geist is Chair of Internet & E-com. Law at Faculty of Law at U of Ottawa)

[96] A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”: Jameel, at para. 54.

[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. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

[113] As Lord Nicholls observed in Reynolds, news is often a perishable commodity. The legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news. But nor should a journalist’s (or blogger’s) desire to get a “scoop” provide an excuse for irresponsible reporting of defamatory allegations. 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.

2009 Grant v TorStar

2009 Grant v TorStar

See also “Quan v. Cusson, 2009“.

2016 July 24 update: This post “The Supreme Court of Canada’s Support of Journalism” by Julian Porter, Q.C. is insightful and worth a read.

Dec 6th, 2016: I sometimes confused “Responsible Communication” (as defined by the Supreme Court) and “Responsible Reporting” (which has not been defined). So I am putting both terms here to make Google search easier in the future.

One Response to “Responsible communication” as a libel defence for reporters and bloggers: Supreme Court of Canada

  1. […] Supreme Court case TVO Search Engine has an insightful podcast (mp3) on the “Responsible Communications” Supreme Court case, “The Supreme Court of Canada’s recent libel ruling isn’t just a victory for […]

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