The Defence of Responsible Communication

• Author: David A. Potts; Erin Stoik
• Pages: 197-215

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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

SCR 712.

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.

BASES FOR THE NEW DEFENCE

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.