Canadian libel law enters the 21st century: the public interest responsible communication defence.

• Author: Dearden, Richard

The Supreme Court of Canada's landmark decisions in Grant v. Torstar Corp. and Quan v. Cusson have advanced freedom of expression in Canada by giving libel defendants protection against liability for false and defamatory facts, where the publisher acted responsibly in attempting to verify information that is in the public interest. In the opinion of the authors, these decisions strengthen core values underlying freedom of expression, including the pursuit of truth and democratic discourse, by facilitating public access to information about matters of public interest. The authors describe the development of this defence. The authors observe that communications about the private lives of public officials can be expected to fall into a "grey zone in establishing the "public interest" component of the defence. In regards to the "responsible communications" component, it is noted that the trial judge's charge to the jury will be critically important to ensure that juries do not eviscerate the defence by requiring libel defendants to satisfy each of the non-exhaustive list of factors to consider in assessing responsibility. It is the opinion of the authors that in most cases common sense, rather than expert opinion, will be required to decide whether the diligence component of the defence has been met, and that expert opinion on the very issue that the trier of fact has to decide will be disallowed if it usurps the jury's function.

Dans les deux arrets-cles Grant c. Torstar Corp. et Quan c. Cusson, la Cour supreme du Canada a fait progresser la liberte d'expression au Canada en accordant aux defendeurs d'une poursuite en diffamation une protection contre toute responsabilite pour des actes mensongers et diffamatoires, alors que l'editeur avait agi de facon responsable en essayant de verifier les renseignements qui etaient dans l'interet public. De l'avis des auteurs, ces decisions renforcent les valeurs fondamentales qui sous-tendent la liberte d'expression, notamment la quete de la verite et le discours democratique, en facilirant l'acces du public aux renseignements sur des sujets d'interet public. Les auteurs decrivent l'e1aboration de ce moyen de defeuse et font observer qu'il faut s'attendre ice que les communications relatives i la vie privee d'alogents publics tombent dans une << zone grise >> rsqu'il s'agit d'etablir la composante << interet public >> de la defense. Pour ce qui est de la composante << communications responsables >>, on note que les instructions du juge de premiere instance au jury seront capitales pour s'assurer que les jures n'aneantissent pas ce moyen de defense en exigeant des defendeurs du libelle diffamatoire qu'ils satisfassent chacun des facteurs de la liste non exhaustive pour evaluer leur responsabilite. Les auteurs sont d'avis que, dans la plupart des cas, c'est la logique, plutot que l'opinion d'un, expert, qui permettra de decider si le critere de diligence, en tant que eomposante du moyen de defense, a ete satisfait et que l'on refusera d'admettre l'opinion d'expert sur la question precise que le juge des faits est tenu de trancher si cette opinion usurpe les fonctions du jury.

Table of Contents I. INTRODUCTION II. THE STATE OF CANADIAN DEFAMATION LAW PRIOR TO THE CREATION OF THE RESPONSIBLE COMMUNICATION DEFENCE III. THE RATIONALE UNDERLYING THE PUBLIC INTEREST RESPONSIBLE COMMUNICATION DEFENCE LIBEL CHILL IV. THE PUBLIC INTEREST V. RESPONSIBLE COMMUNICATIONS--DILIGENCE IN VERIFYING THE DEFAMATORY STATEMENTS A. Introduction B. The Seriousness of the Allegation C. The Public Importance of the Matter D. The Urgency of the Matter E. The Status and Reliability of the Source F. Whether the Plaintiff's Side of the Story was Sought and Accurately Reported G. Whether Inclusion of the Defamatory Statement was Justifiable H. Reportage--Whether the Defamatory Statement's Public Interest lay in the Fact it was Made Rather Than its Truth I. Other Considerations J. Experts VI. Co-EXISTENCE OF THE TRADITIONAL QUALIFIED PRIVILEGE DEFENCE WITH THE PUBLIC INTEREST RESPONSIBLE COMMUNICATION DEFENCE VII. THE ROLE OF THE JUDGE AND JURY VIII. CONCLUSION I. INTRODUCTION

All libel defendants in Canada can now rely upon a new defence--responsible communication on matters of public interest. The Supreme Court of Canada's landmark decisions in Grant v. Torstar Corp. (1) and Quan v. Cusson (2) modernized Canadian libel law in accordance with Charter (3) values by creating the responsible communication defence, which provides additional protection to publishers of false and defamatory facts. The Supreme Court ordered new trials in both the Grant and Quan cases, overturning jury libel damage awards of $1.4 million and $100,000 respectively; verdicts that represented chilling attacks on freedom of the press in this country.

The public interest responsible communication defence requires that two conditions be fulfilled: (i) the publication must be on a matter of public interest and (ii) the defendant must show that the publication by him or her was responsible, in that he or she was diligent in trying to verify the allegations having regard to all the relevant circumstances. (4) The responsible communication defence is "assessed with reference to the broad thrust of the publication in question" (5) and is available to any libel defendant--the traditional media (newspapers, television, radio) and new media such as bloggers. The burden of proof in establishing the defence lies with the defendant.

The decisions in Grant and Quan represent an important advancement of freedom of speech in Canada and a major change in the law of defamation. Publishers of matters of public interest now have a new defence available that will encourage responsible journalism and the dissemination of more information to the public without the fear of being sued and fending off staggering damage awards. Libel plaintiffs may view the decisions as an invitation to destroy reputations because the new defence protects false statements of fact. However, the framework that the Court has built around the defence is designed so that the defence does not become a licence to defame. As the Court stated in Grant: "The 'bald retailing of libels' is not in the public interest." (6)

This case comment sets out the state of Canadian defamation law prior to the Supreme Court's creation of the public interest responsible communication defence and explains the Court's "libel chill" rationale underlying its adoption of the new defence. The case comment then looks at how the new defence is to be proven by reviewing the carefully crafted guideposts the Court has set down for determining whether a communication is about a matter of public interest and whether the publisher acted diligently.

2. THE STATE OF CANADIAN DEFAMATION LAW PRIOR TO THE CREATION OF THE RESPONSIBLE COMMUNICATION DEFENCE

   Libel is a strict liability tort. Libel plaintiffs in the common law provinces need only prove that the words complained of are: (i) capable of being defamatory, (ii) were published and (iii) refer to the plaintiff. (7) The law then presumes that the words complained of are false and the plaintiff suffered damages. A libel defendant has to meet dais reverse onus in cases alleging false facts by proving the words are true, or that the occasion of the publication is one that attracts an absolute or qualified privilege.

   The defence of truth applies to factual statements and the defence of fair comment applies to "comments" or "opinions" based on true facts. At the time of publication, the publisher never knows with certainty whether the words complained of are "facts" or "comments" and whether the facts in issue in those defences can be proven with court-established certainty.

   The Supreme Court in WIC Radio Ltd. v. Simpson modified the common law of fair comment to develop the defence in a manner consistent with the Charter values underlying freedom of expression, including freedom of the press. (8) The Court has once again modified the common law of defamation in accordance with Charter values in Grant and Quan by creating a sui generis defence regarding false and defamatory facts.

   The traditional defence of qualified privilege applies to factual statements that are made on a "privileged occasion." A privileged occasion exists where the defendant has either an interest or a legal, social or moral duty to communicate the defamatory statement of fact, and its recipients have a corresponding duty or interest to receive that communication. (9) This reciprocity is essential. (10)

   In a series of decisions in the 1950s and 1960s, the Supreme Court refused to allow the traditional defence of qualified privilege for publications to the world at large. These decisions were based on the rationale that newspaper publishers are in no different position from any other citizen, with the effect that their right to report and comment fairly did not give rise to a "duty" to report to the world at large. (11)

   This jurisprudence of the Supreme Court conflicted with post-Charter decisions of Canadian and Commonwealth courts that allowed the media to rely on some form of a qualified privilege defence for publications to the world at large. These decisions recognized that there are occasions giving rise to a duty on the media to report on matters of public interest and that there is a corresponding interest in the public at large to receive such information.

   In Grenier v. Southam Inc., the Court of Appeal for Ontario upheld the decision of the trial judge that an Ottawa Citizen article was published on an occasion of qualified privilege. (12) The Ottawa Citizen article reported on a self-help group called "Fundamentalists Anonymous" that assisted Alice Grenier's husband in dealing with her obsession with television evangelists. In its endorsement, the Court of Appeal held: "[T]he trial judge specifically found on the evidence before him that there was a social and moral duty on...