Law of defamation changed by Supreme Court

The extremely important defamation decision in Grant v. Torstar Corp. 2009 SCC 61 was released a few moments ago. The decision modified the law of defamation to recognise a defence of responsible communication on matters of public interest. 

A summary follows:
 
G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G's lakefront estate.  The story aired the views of local residents who were critical of the development's environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course.  The article quoted a neighbour who said that "everyone thinks it's a done deal" because of G's influence.  The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide.  At trial, without rejecting the possibility of an expanded qualified privilege defence based on a concept of public interest responsible journalism, the trial judge ruled that the defence would not apply in these circumstances and the case went to the jury essentially on the defences of truth and fair comment.  The jury rejected these defences and awarded the plaintiffs general, aggravated and punitive damages.  The Court of Appeal concluded that the trial judge had erred in failing to leave the new responsible journalism defence with the jury.  It also concluded that the jury instructions were flawed, and ordered a new trial.  G and his company appealed to reinstate the jury verdict.  The newspaper defendants cross-appealed, asking the Court to apply the new defence in this case, and dismiss the action.  In the alternative, they asked the Court to dismiss the action on the basis of fair comment.

The Supreme Court dismissed the appeal and the cross-appeal.

The law of defamation should be modified to provide greater protection for communications on matters of public interest.  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.  The first two rationales for the freedom of expression guarantee in s. 2(b) of the Canadian Charter of Rights and Freedoms — the proper functioning of democratic governance and getting at the truth — squarely apply to communications on matters of public interest, even those which contain false imputations.  Freewheeling debate on matters of public interest is to be encouraged and the vital role of the communications media in providing a vehicle for such debate is explicitly recognised in the text of s. 2(b) itself.  While the law must protect reputation, the current level of protection — in effect a regime of strict liability — is not justifiable.  The law of defamation accords no protection for statements on matters of public interest published to the world at large if they cannot be proven to be true.  To insist on court established certainty in reporting on matters of public interest may have the effect not only of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate, but also 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.  Although the right to free expression does not confer a licence to ruin reputation,  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.  A consideration of the jurisprudence of other common law democracies also favours replacing the current Canadian law with a rule that gives greater scope to freedom of expression while offering adequate protection of reputation.  A defence that would allow publishers to escape liability if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society.  The law of defamation should therefore be modified to recognise a defence of responsible communication on matters of public interest. 

The proposed change to the law should be viewed as a new defence, leaving the traditional defence of qualified privilege intact.  To be protected by the defence of responsible communication, first, the publication must be on a matter of public interest.  Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. 

In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole.  The defamatory statement should not be scrutinised in isolation.  To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.  Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a "public figure". 

The judge determines whether the impugned statement relates to a matter of public interest.  If public interest is shown, the jury decides whether on the evidence the defence of responsible communication is established.  The following factors may aid in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff's side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("reportage"); and (h) any other relevant circumstances.  

While the "repetition rule" holds that repeating a libel has the same legal consequences as originating it, under the reportage exception, the repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity.  If a dispute is itself a matter of public interest and the allegations are fairly reported, the report will be found to be responsible even if some of the statements made may be defamatory and untrue, provided:  (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made. 

The evidence in this case revealed a basis for three defences:  justification, fair comment, and responsible communication on a matter of public interest.  All three defences should have been left to the jury.  It was open to the jury to consider the statement attributed to a neighbour that "everyone thinks it's a done deal" as a comment, or statement of opinion.  This would raise the defence of fair comment.  While the defence was left to the jurors, the trial judge failed to instruct them that since the reporter was the conduit for the comment and not its maker, the fact that he did not honestly believe it could not be used as a foundation for finding malice unless in the context of the article, he had adopted the comment as his own.  Additionally, the "fair-minded" component of the traditional test should not form part of a charge on fair comment.  These problems in the trial judge's charge could have led the jury to wrongly conclude that the fair comment defence had been defeated by malice.  It was also open to the jury to consider the critical "done deal" remark as a statement of fact. Read literally, this statement can be taken as an assertion that government approval for the development was actually already sealed, either formally behind closed doors or by tacit understanding.  This raises the defence of responsible communication on a matter of public interest.  The trial judge did not leave this defence or any similar defence to the jury.  Taken together, the errors set out amount to a substantial wrong or miscarriage of justice and require a new trial pursuant to s. 134(6) of the Ontario Courts of Justice Act. 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

www.jmortonmusings.blogspot.com