Libel chill is warming slightly

Legal precedent in Canada when it comes to libel has just taken an interesting turn. The Ontario Court of Appeal has given journalists a new kind of defence in libel cases: “public interest responsible journalism”.

(See the complete court ruling)

In short, the defence, which is modelled after a similar one in England, protects journalists who execute due dilligence and responsible journalistic practices in their reporting (like fact-checking, making attempts to get the other side of the story, checking sources for hidden agendas etc.), even if they get some of their facts wrong and even if those things are defamatory, when they write articles about issues of public interest.

The case, Cusson v. Quan, concerns an OPP police officer who sued the Ottawa Citizen and its reporters for an investigative piece they wrote about him, questioning his “heroics” after 9/11, going down to Ground Zero to help in recovery efforts. The article alleges he impersonated an RCMP officer and lied about training he and his dog had received. Though the gist of the story seemed to be correct, and some facts were debatable, the jury ruled that the Citizen got enough facts wrong that the officer should be compensated financially.

Ironically, since the Citizen did not use this defence at trial (one might argue it couldn’t since the defence didn’t exist yet in Canadian law), the appeal was denied and the Citizen still has to pay.

Despite the loss, the Canadian Newspaper Association and other journalist groups are hailing the decision as a victory for journalism in Canada, which will help remove some libel chill that journalists experience even when they do their jobs to the best of their abilities.

Whether a particular piece of journalism qualifies for this defence depends on the following 1o factors (though this is not an exhaustive list):

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.

It’s a victory for common sense, albeit thanks to a bit of judicial activism. The court based its decision based more on the laws of other countries and its own opinions of what balance there should be between two charter rights than it did based on Canadian jurisprudence.

A couple things to note about this decision before you start breathing too easily:

  1. It’s the Ontario Court of Appeal, not the Supreme Court of Canada. So technically it just applies to Ontario. Whether it goes up to the Supreme Court depends on whether someone appeals the decision (since the Citizen lost the case, I guess it would be up to them to do so), but it’s a significant enough one that I think they would jump at the chance.
  2. Though other provincial courts will probably follow that decision as jurisprudence, Quebec is an entirely different animal. Our laws are very different, and in fact our entire legal system is different from the rest of Canada (distinct society woo!). We’re based on civil law, whereas Ontario’s system (and the principles on which this judgment is based) are common law.
  3. Even if it’s accepted here, you still have to do your homework when you write potentially damaging things. This isn’t like in the U.S. where a plaintiff has to prove “actual malice” and show you intended to lie or be reckless with facts. They need only show that you were lazy, or sensational, or forgetful, or otherwise irresponsible. Or they can simply show that the reporting wasn’t in the public interest.

Still, a good day for journalism.

UPDATE (Nov. 22): CBC lawyer Daniel Henry delves into the ruling for some of its implications.

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