A significant change to Canadian defamation law was made in
Cusson v. Quan recently followed in
Grant v. Torstar Corp.
Cusson found a public interest defence for responsible journalism which means that “where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong.”
Grant adds, “both substantively and procedurally, courts must be able to be flexible when dealing with the responsible journalism defence.” This defence is a departure from an earlier line of cases that refused to apply differing standards between media and ordinary citizens.
The purpose of the responsible journalism defence is to provide broader accommodation to the value of freedom of expression by relaxing traditional common law no-fault liability as applied to responsible journalism, while continuing to value protection of reputation by not going so far as to extend qualified privilege (which requires proof of malice to be defeated).
An appeal of Cusson will be heard by the Supreme Court of Canada on Feb. 17. In deciding whether to affirm this change, Canada’s highest court should reflect on what “media” actually means, because its meaning has a direct effect on the change achieving, and remaining limited to, its stated purpose.
Cusson undertook a thorough canvassing of the development of defamation law in other common law jurisdictions, finding they had all shifted away from protection of reputation.
It adopted a list of 10 factors from
Reynolds v. Times Newspapers Ltd. as indicia of whether the media conducted itself in accordance with the standards of responsible journalism, and were truly acting in the public interest in the circumstances.
Cusson did not comment on what entities, following the stated indicia, could avail themselves of the defence.
Put another way, Cusson did not comment on what constituted “media.” This omission is reminiscent of early Charter jurisprudence that overlooked the scope of the Charter’s application, i.e. confined to government.
What does the meaning of media matter?
Actually a great deal, for the media landscape has evolved strikingly due to the Internet. If media is not carefully defined, then the new defence articulated in Cusson could, over time, be a widely accessed defence for libel.
If a person, not necessarily with any journalistic experience, follows the Reynolds factors and publishes something on the Internet, yet turns out to have some facts wrong, should they be precluded from a successful responsible journalism defence?
There is a fluid relationship between traditional media and emerging online forms.
Many Canadian newspapers and magazines have online incarnations that consist of blogging sections unavailable in their print editions. Bill Tieleman (
billtieleman.blogspot.com) is but one of many examples of journalists who publish credible work both on their own blogs and in print media.
Small market and niche print publications, while traditional in form, may be less sophisticated and journalistically rigorous than a purely online entity. There are news sites comprised entirely of citizen-generated news, such as
NowPublic.com and
Wikinews.org.
Moreover, in some circumstances media reporting by ordinary citizens may provide a valuable source of information.
For instance, local events, such as municipal elections, may be very much in the public interest and covered extensively by blogs, but because of their relative unimportance not receive much scrutiny by traditional media. However, the value of original news reporting by blogs is by no means restricted to events of only local import.
During the 2008 Canadian federal election, blogger Steve Janke broke a story about then-incumbent MP Garth Turner not disclosing to a TV camera crew filming him door knocking, that while being filmed he knocked on the door of someone tied to his campaign.
Suffice it to say, that particular door knocking depicted a rosy interaction with a constituent, and the fallout from the story did not help re-elect Mr. Turner.
Citizen journalism may be invaluable in recording and disseminating information on breaking news stories. For example, first-hand accounts of the 2008 terrorist attack in Mumbai were posted in real time on twitter.com.
The bottom line is: a discrete distinction between traditional media and media on the Internet, some of which may be generated by ordinary citizens, likely does not exist.
If the Supreme Court is, therefore, to affirm the responsible journalism defence, it should consider and deliberate this fact. Some indicia of media may be: how longstanding an entity has engaged in news reporting, and the presence of editors or oversight.
Such indicia may provide guidance but not be determinative as to whether an entity is media for the purposes of the defence if the dominant consideration is the public interest.
Jacob Tummon is a civil litigator in Victoria, B.C.
