Are you a responsible journalist? That’s the new test—technically referred to as responsible communication on matters of public interest—that the Supreme Court of Canada has devised to aid in deciding defamation cases. While being “responsible” won’t necessarily stop you from being sued, it could aid your defence if you’re hauled into court. Read on to find out what this new defence is, how it came into being and how it could affect the way you work.
How journalists are like doctors…sort of
You’re sick. You go see a doctor. You stay sick. Can you sue and win?
Maybe—if your doctor was negligent in his or her care. But probably not if your doc is fully trained and followed current medical standards while treating you.
You write a story about a business owner who declined to be interviewed. The story is published and the owner believes it contains inaccurices. Can he or she sue and win?
Maybe. But since a pair of Supreme Court of Canada decisions on December 22, 2009, the journalist may not have to prove the truth behind the statements in the article—depending on a few factors, of course. This concept may be referred to as an obligation of means as opposed to an obligation of result: journalists are allowed to get it wrong, as long as they conduct their journalistic investigations responsibly. Just as doctors aren’t held responsible for delivering a cure for every case, journalists are not obliged to deliver 100 percent accuracy. But also like doctors, they are required to perform their job according to industry standards. The other factor is whether the story is on a matter of “public interest.” While matters of public interest are broadly defined, the Supreme Court does make it clear that this is not synonymous with what interests the public.
The rise of responsibility
The responsible journalism defence was developed in Britain. In the 1999 Reynolds v. Times Newspapers Ltd. case, the House of Lords developed a list of considerations—which have come to be known as “Reynolds factors”—to determine whether a publication should be covered by the new standard: responsible journalism. The factors include, but are not limited to: the nature of the information, and the extent to which the subject matter is a matter of public concern; the steps taken to verify the information; the urgency of the matter; the tone of the article. This defence was reaffirmed and strengthened in 2006 by the decision in Jameel v. Wall Street Journal Europe Sprl. In these cases the House of Lords established a responsible journalism defence that was meant to “foster free expression and a free press.” But the defence wasn’t brought to Canada until two key Canadian cases made their way into the courts.
Danno Cusson was a constable with the Ontario Provincial Police who, shortly after the twin towers fell on September 11, 2001, went to New York to help with the search-and-rescue efforts. He went without permission from his employer, and on September 25 the Ottawa Citizen published an article saying that Cusson had misrepresented himself and may have interfered negatively with the rescue operation.
Cusson sued the Citizen and writer Douglas Quan, as well as a colleague who was a quoted source for the article, for defamation of character. At the 2004 Ontario Superior Court of Justice trial, the lawyers for Quan and the Citizen pleaded qualified privilege. Cusson’s lawyers argued that there was no moral or social duty to publish the story, and that the public interest served was not vital enough for the defence to apply. The jury rejected the claim of privilege, found that some of the facts in the story could not be proven true and awarded damages of $125,000 to Cusson.
The Citizen appealed the case to the Court of Appeal for Ontario in 2007, arguing for a Canadian version of the responsible journalism defence. The court agreed that such a defence should exist, and it was established in Ontario; however it was denied to the Citizen as it had not brought the defence forward at the original trial.
The Citizen appealed that ruling to the Supreme Court of Canada, which heard the case in February 2009. As the appellants would have been disadvantaged if deprived of the opportunity to use the new responsible journalism defence, the Supreme Court allowed them to plead it.
It wasn’t the only key case that influenced the future of the defence, the Supreme Court also heard the case of Grant v. Torstar Corp. later that year. In June 2001, Bill Schiller, a Toronto Star reporter, wrote an article on how Peter Grant of Grant Forest Products Inc. wanted to build a private golf course on his lakefront estate on northern Ontario’s Twin Lakes. Schiller, an experienced journalist, contacted Grant for a statement, which Grant chose not to provide. The article published in the Star included critical quotes from members of the community, one who was quoted as saying that “everyone thinks it’s a done deal,” because of Grant’s financial support of and close connection to the Harris government.
After the article appeared in the Star, Grant felt that his reputation had been damaged and sued for libel. At trial the jury concluded the quotes in the story had no reasonable grounds and that Schiller acted with a probability of malice. Grant was awarded general, aggravated and punitive damages totalling $1,475,000—the largest damage award for defamation in Canada.
The case was brought to the Ontario Court of Appeal, which concluded that the original trial judge failed to correctly apply the defence of responsible journalism in the public interest, and among other things, also failed to summarize the evidence fairly to the defendants. The court ordered a new trial, and Grant and his lawyers sought to reinstate the jury verdict.
At the Supreme Court of Canada, the Torstar lawyers argued that it was appropriate to revise the defences available to journalists to address the fact that the law curbs freedom of expression. They argued journalists should be able to communicate matters of public interest which they report by adhering to principles of responsible journalism as defined by the court.
Because the two cases covered related ground, the court decided to issue both rulings simultaneously, fast-tracking the Grant case and giving the lawyers on both sides only nine weeks before the next hearing. Having already heard Quan v. Cusson, the Supreme Court of Canada made decisions eight months after the Grant v. Torstar Supreme Court hearing on December 22, 2009. In Grant v. Torstar, the ruling was that Schiller was dedicated in his research and acted responsibly by giving Grant the chance to comment. In Quan v. Cusson, the court ruled that the article was on a matter of public interest and the journalist was diligent in trying to verify the allegation. A new defence—responsible communication on matters of public interest—had arrived.
The court altered the term “responsible journalism,” acknowledging that the internet age is expanding methods for communicating on matters of public interest, and making the new defence “available to anyone who publishes material of public interest in any medium.”
How the courts expect journalists to work
Journalists are now treated similarly to doctors—the emphasis is on obligation, not result. There is no guarantee that surgery won’t have any complications, but as long as the doctor performing the surgery follows current medical standards and is fully trained, then he or she can’t be found at fault. Similarly, if a journalist’s statement can’t be proven true but he or she talked to people on both sides of the story and verified any unreliable information—behaving like a responsible journalist—then the reporter shouldn’t be at fault either.
The Supreme Court has outlined some of the factors under which responsible communication on matters of public interest could successfully be used as a defence. They include:
- The piece is on a matter of public interest.
- The journalist was diligent in attempting to verify the facts, including having reliable sources as well as seeking out and trying to accurately report the complainant's side of the story.
- The seriousness of the allegation.
- Whether the allegedly defamatory statement was justifiable.
The court makes it clear that these circumstances are not absolute. Some may carry more weight than others, new guidelines may be added and existing guidelines may be rejected, depending on the case.