PitbLAWg

Responsible Communication Defence a Holiday Gift for Journalists

Canadian journalists got a little something special in their stockings late last year from Canada’s highest court. That gift was the defence of “responsible communication on matters of public interest”, and it’s a fundamental change in the law of defamation.

Defamation is actionable when a plaintiff can prove that published words “would tend to lower his or her reputation in the eyes of a reasonable person.”

Before the recent decisions of Grant v. Torstar Corp. and Quan v. Cusson, journalists who were faced with defamation lawsuits arising from factual statements had recourse to a number of defences. However, these defences did not protect a journalist who, despite extensive source checking, was unable to prove the story was true.

With the defence of responsible communication, the Supreme Court has recognized that good faith reporting made in the public interest, and backed up by appropriate due diligence, should not be actionable. To rely on the defence, a journalist must show his or her story was: 1) in the public interest; and 2) responsibly reported.

According to the court in Grant, public interest is shown when a matter is “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.”

Responsibility, meanwhile, is assessed by reference to:

(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.

Of note, the defence applies to “responsible communication”, not just journalism. This means it should be available to bloggers, or anyone else who communicates responsibly on matters of public interest.

January 27, 2010 Posted by Andrew Buck | Blogs, Defamation | Defamation | Leave a Comment