The judges of this country’s top court are currently deciding whether to embrace a new defence against libel called “public interest responsible journalism.” The Supreme Court of Canada must accept the idea that our libel law needs to change.
But at the same time the media should know that while it is progress, this is not heaven yet either.
The issue arose in an appeal of a 2007 Ontario Court of Appeal decision that upheld a libel verdict and damage award against the Ottawa Citizen newspaper, but laid out rules for a new defence for stories that deal with matters in the public interest, as long as they are researched and written responsibly.
The Citizen was found to have libelled former OPP officer Danno Cusson, who took his dog to New York City to assist in the search for survivors of the Sept.11 terror attacks. Unfortunately for the Citizen the OCA, while creating the new defence, found it did not apply to the newspaper in this case because it wasn’t argued at the original trial.
If the SCC bites, this is a big change that would protect media from being found liable if they can show reasonable steps were taken with “due diligence” to prove a story is accurate and fair, even if it emerges that errors crept into the copy.
Several media lawyers argued in favour of adopting the new defence. According to the Toronto Star, lawyer Brian Rogers, acting for several media associations, noted that getting to the truth is sometimes a “messy process,” and publication of a statement that is shown to be false could lead ultimately to the truth.
Star lawyer Paul Schabas was asked by Justice Rosalie Abella: “Is it your position they have the right to be wrong if they’ve taken all reasonable steps?”
“If they’ve acted responsibly,” said Schabas. “Yes, they do have the right to be wrong.”
He’s right. And so too is Alan Shanoff, Law Times columnist and former counsel to Sun Media Corp., when he tells us: “If freedom of expression means anything it means that you have the right to be wrong on occasion. . . . I think this defence is necessary because the media has to have the right to be wrong if freedom of expression has any meaning.”
Shanoff did not appear before the SCC, but told Law Times in an interview after the hearing that while he thinks the court should adopt the new defence, he warned “it’s no panacea” for the media.
“This is going to be a very vague defence. It’s going to put the judges and juries in the newsrooms of each community and they’re going to decide ultimately whether the editors and reporters acted responsibly. So it’s a very messy defence.”
Judges and juries, he said, will “determine whether the journalist acted responsibly; they will determine whether the journalist went far enough in his or her investigation.”
He added it’s “absolutely” much better than what we have because currently “if you get it wrong you lose unless you have a privilege. You could have a qualified privilege, but that’s very rare, and so sure it’s a great development for the media - but it’s not paradise.”
It’s important the SCC adopt this important step so we can keep climbing up that stairway.
- Gretchen Drummie
