Defamation laws have always favoured the protection of reputations to the detriment of free speech. Two decisions released this year do little to redress the imbalance.
Cusson v. Quan et al from the Ontario Court of Appeal and
Simpson v. Mair and WIC Radio Ltd. from the Supreme Court of Canada don’t go far enough to reform defamation laws.
These two cases do nothing to fix the main defects in defamation laws. First, all factual statements published by a defendant are presumed to be false. Second, expressions of opinion on matters of public interest must satisfy an artificial test.
Third, it is remarkably easy to satisfy the legal test of whether words complained of are reasonably capable of lowering one’s reputation. Last, damages are presumed; the plaintiff need not call any evidence of actual damages or actual harm to reputation. With these principles is it any wonder that libel chill is a real fact of life for publishers?
The Cusson decision has made available to the media a new defence with which to defend erroneous statements of fact in defamation actions. This new defence is given the name “public interest responsible journalism.”
The media can now, or so it is said, successfully defend itself merely by showing that it “acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear.” In assessing the media’s conduct we’ve been given a “non-exhaustive” list of 10 factors.
Leaving aside for a moment the vagueness of this defence, I doubt this ruling is going to do anything other than cause headaches for the media. Any attempt to use this defence will bring judges and juries into the newsrooms of the nation. Judges and jurors will become editors.
As Ontario Court of Appeal Justice Robert Sharpe recognized, “Adopting this defence shifts the focus of defamation law away from the truth and towards the conduct of the defendant.” Experts in journalism are going to be the chief beneficiaries of this defence. Each side is going to call its journalism expert to provide expert opinions on the standards of responsible journalism.
In addition, we are going to see lengthened examinations for discovery and trials where the conduct of all writers and editors will be examined in excruciating detail to determine if they satisfy the standards of responsible journalism. And, at the end of the trial, the responsible journalism defence could fail for any one of many reasons.
Here’s just a sampling of these potential reasons: the language used was too sensationalistic; the story wasn’t important enough to merit the space; the writer didn’t speak to every possible source; the sources used were biased; the writer/editor didn’t critically test the information given; more should have been done to verify the information; the other side wasn’t adequately reported; the writer rushed to judgment; documents weren’t properly interpreted; additional documents should have been obtained; the tone of the article was too shrill. And on and on.
So let’s see, longer trials, more experts, and a lot of uncertainty; that’s what I see coming from Cusson. There’s nothing to fix the problem of statements of fact being presumed to be false.
The SCC decision in Simpson considered fair comment, the defence used to defend defamatory opinions. In dismissing Simpson’s defamation action the SCC clarified the defence of fair comment, but didn’t go far enough. A recurring problem with the fair comment defence is the extent to which the comment must be fair or the extent to which the comment must be one that a fair-minded person could hold.
Of course, having any requirement of fairness destroys the usefulness of the defence save in respect of the most timid opinions. The SCC did well in unequivocally stating that the issue of fairness or what a fair-minded person might think is irrelevant. A comment can be far-fetched, foolish, exaggerated, even unreasonable.
It can poke fun at people turning them into caricatures. In short, the comment need not be “fair,” notwithstanding the name of the defence. It’s too bad the court didn’t change the name of the defence to “comment defence.” I fear that juries will still be confused by the use of the term “fair” as part of the name of the defence.
Unfortunately the SCC retained an honesty element to this defence. The comment must be a comment that any person - however “prejudiced, exaggerated or obstinate” in his views - could have “honestly” expressed, based on the known facts. Retaining the element of what one could have “honestly” expressed is bound to create confusion and may bring in through the back door an element of reasonableness or fairness.
There is no need for an honesty requirement. It should be sufficient that there be a relationship between the underlying facts and the opinion expressed.
Another problem with the Simpson case is the lack of attention to the issue of malice. Malice defeats a fair comment defence. While some judges have stated that it is difficult for a plaintiff to establish malice, the concept of malice and the evidence necessary to establish malice is too uncertain. Uncertainty in what constitutes malice reduces the usefulness of the fair comment defence.
Further, statements by Supreme Court Justice Louis LeBel that proof of malice may be intrinsic, that is “it may be drawn from the language of the assertion” and that society should protect “spirited - but not mean-spirited - speech” indicates that the malice issue may yet be another way to reintroduce the concept of fairness.
While it’s good to see some modernization in defamation law we have a long way to go before the law, strikes a fair balance between protection of reputation and free speech.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
