The Defence of Responsible Communication

AuthorDavid A. Potts; Erin Stoik
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The Defence of Responsible Communication
In 2009, the Supreme Court of Canada created a new defence called respon-
sible communication on matters of public interest: Quan v Cusson, [2009] 3
The defence in Canada “should be viewed as a new defence, leaving the
traditional defence of qualif‌ied privilege intact”: Grant v Torstar Corp, [2009]
3 SCR 640 at para 95. The defence is available to anyone who publishes
materials of public interest on any medium. See para 96:
[96] A second preliminary question is what the new defence should be called.
In arguments before us, the defence was referred to as the responsible jour-
nalism test. This has the value of capturing the essence of the defence in suc-
cinct style. However, the traditional media are rapidly being complemented
by new ways of communicating on matters of public interest, many of them
online, which do not involve journalists. These new disseminators of news and
information should, absent good reasons for exclusion, be subject to the same
laws as established media outlets. I agree with Lord Hof‌fmann that the new
defence is “available to anyone who publishes material of public interest in
any medium”: Jameel, at para. 54.
The Supreme Court of Canada, through the Chief Justice, decided that there
were two bases for broadening the defences available to public communica-
tions, such as the press, in reporting matters of fact.
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Argument Based on Principle
The Court held that the law should be changed as a matter of principle in
Grant v Torstar Corp, [2009] 3 SCR 640 per the Chief Justice at para 65:
[65] Having considered the arguments on both sides of the debate from the
perspective of principle, I conclude that the current law with respect to state-
ments that are reliable and important to public debate does not give adequate
weight to the constitutional value of free expression. While the law must
protect reputation, the level of protection currently accorded by the law—in
ef‌fect a regime of strict liability — is not justif‌iable. The law of defamation
currently accords no protection for statements on matters of public interest
published to the world at large if they cannot, for whatever reason, be proven
to be true. But such communications advance both free expression rationales
mentioned above—democratic discourse and truth-f‌inding—and therefore
require some protection within the law of defamation. When proper weight
is given to the constitutional value of free expression on matters of public
interest, the balance tips in favour of broadening the defences available to
those who communicate facts it is in the public’s interest to know.
Argument Based on the Jurisprudence
The Supreme Court of Canada reviewed the jurisprudence of the common
law democracies of Australia, New Zealand, South Africa, the United King-
dom, and the United States (see Grant v Torstar Corp, [2009] 3 SCR 640 at
paras 66–84). As a result of the review, the Supreme Court reached the fol-
lowing conclusion, per the Chief Justice at paras 85–86:
[85] A number of countries with common law traditions comparable to those
of Canada have moved in recent years to modify the law of defamation to
provide greater protection for communications on matters of public interest.
These developments confront us with a range of possibilities. The traditional
common law defence of qualif‌ied privilege, which of‌fered no protection in
respect of publications to the world at large, situates itself at one end of the
spectrum of possible alternatives. At the other end is the American approach
of protecting all statements about public f‌igures, unless the plaintif‌f can show
malice. Between these two extremes lies the option of a defence that would
allow publishers to escape liability if they can establish that they acted respon-
sibly in attempting to verify the information on a matter of public interest.
This middle road is the path chosen by courts in Australia, New Zealand, South
Africa and the United Kingdom.

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