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A Win Streak for Free Speech

'Responsible journalism' decision latest to loosen libel law in Canada.

By Tom Barrett 15 Dec 2008 |

Tom Barrett is a contributing editor to The Tyee.

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Court concerned about 'chill.'

A recent Ontario Court of Appeal decision is being hailed as one more significant step in expanding Canadian free speech rights.

The Nov. 28 decision in Grant vs. Torstar recognizes what is known as the "responsible journalism" defence in libel cases. The defence is a legal innovation that has been described as revolutionary in terms of how it allows journalists to report in the public interest.

The responsible journalism defence will be aired before the Supreme Court of Canada in February and it's possible the top court will reject it. But legal experts say the Grant vs. Torstar decision suggests the courts are moving in the direction of greater freedom of expression.

While it can't be described as groundbreaking, Grant vs. Torstar is still "a very important case," said Dan Burnett, a Vancouver lawyer who teaches a course in media law at the University of B.C. journalism school.

Mair victory part of trend

The decision is part of a recent trend in Canadian law. In June, the Supreme Court of Canada dismissed an action prompted by harsh comments made by broadcaster and Tyee columnist Rafe Mair about activist Kari Simpson.

Canadian courts have traditionally taken a strict attitude toward what can be said about people, especially compared to the U.S., where public figures are open to all sorts of criticism.

In the past, the balance between protecting a plaintiff's reputation and allowing free expression tended to tip away from free speech.

But in the case of Mair vs. Simpson, the Supreme Court signalled that the balance is shifting.

The case began in 1999, with a furor over gay teachers in Surrey. When Simpson argued that the schools were promoting homosexuality, Mair ran an editorial on CKNW that compared her to Adolph Hitler and the Ku Klux Klan.

At the original trial, the B.C. Supreme Court dismissed the suit, ruling that Mair's remarks, while defamatory, fit the definition of "fair comment" -- that is, they were Mair's honest opinion and were based on the facts.

The B.C. Appeal Court overturned that judgment, saying that Mair's remarks suggested Simpson would condone violence against gays and that there was no evidence to support this suggestion. Nor, said the Appeal Court, did Mair claim that it was his honest opinion that Simpson condoned anti-gay violence.

The Supreme Court of Canada overturned that decision, saying that Mair's "expression of opinion, however exaggerated, was protected by the law."

Concern about 'chilling' legit debate

The Supreme Court of Canada said the traditional elements of defamation law "may require modification to provide broader accommodation to the value of freedom of expression."

Said the court:

There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action.

Investigative reports get "spiked," it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation.

"Chilling" false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.

One of the oddities about the common law that governs defamation in Canada is that the courts assume that comments that hurt an individual's reputation are false; it is up to the person who made the comments to prove they are true.

But proving that a controversial news article is true isn't always easy, Burnett notes.

"We all know there's times where the literal proof or the strict proof of something you've said can be elusive because a witness is either out of jurisdiction or has died or backpedalled," he told The Tyee.

'Responsible journalism' defence

Canadian libel law has traditionally not offered what you might call a "due diligence" defence. If an allegation contains incorrect information, it doesn't matter how much effort a defendant put into checking the facts before publishing.

"You might do an investigative journalism piece and you could research the piece to death for a year but you may have some bad information in there and how careful you were and how much diligence you put into it ... really counts for nothing," Burnett said.

That's where the "responsible journalism" defence comes in.

The defence got its start in Britain, where the House of Lords ruled in 2001 that journalists should not be penalized for performing their jobs in good faith.

In 2007, the Ontario Appeal Court took note of this decision when it heard a landmark case known as Cusson vs. Quan.

The court observed that "there is a very real difference between what a speaker honestly and reasonably believes to be true and what can be proved to be true in a court of law. The threat of litigation under a legal regime that leaves no margin for error, even where the speaker took all reasonable steps to verify the facts, discourages free and open debate on matters of public importance."

In light of the Charter of Rights and Freedoms and court decisions in other countries, the Ontario court held that the "inhibiting effect of traditional defamation law is incompatible with the climate of free and robust debate to which a democratic society aspires."

Supreme Court hears case in February

The responsible journalism defence requires a journalist to demonstrate that he or she took "reasonable steps to ascertain the truth of the story by following the standards of responsible journalism when investigating, writing and publishing the defamatory statement," the court said.

"Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals," the court held. "Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved."

The Cusson decision is scheduled to go before the Supreme Court of Canada in February. But in the meantime, as the Grant vs. Torstar decision shows, the courts are beginning to treat the defence of "responsible journalism" as an element of Canadian libel law.

As an Osgoode Hall law school blog recently noted, "With the way things are going, by the time the [Supreme Court of Canada] has anything to say about it, responsible journalism may already be old news."

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