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Landmark decision applies not only to traditional media but to countless organizations, including unions, labour websites and bloggers, now publishing in an instant media world.
Ottawa (24 Dec. 2009) - The Supreme Court of Canada has issued a landmark ruling giving journalists – and anyone else publishing information of public interest – a new and broader defence of "responsible communication" in cases where they may be sued or threatened with libel.
Essentially, the unanimous decision says journalists – and a vast online community of bloggers and commentators, including unions and labour websites – should no longer be held to an impossible standard of perfection before reporting on controversial issues of public interest.
The new defence of "public interest responsible communication" recognizes that some factual errors may occur in day to day journalism but it makes provision for them to be excused when they occur while publishing information that is "a matter of public interest" and when "the publisher was diligent in trying to verify the allegation."
Specifically, the court said, the latter point must take into account the following factors:
- the seriousness of the allegation.
- the public importance of the matter.
- the urgency of the matter.
- the status and reliability of the source.
- whether the plaintiff's side of the story was sought and accurately reported.
- whether the inclusion of the defamatory statement was justifiable.
- whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”).
- any other relevant circumstances.
Written by Chief Justice Beverley McLachlin, the ruling represents a major step forward for journalism and free speech in Canada – where libel laws have long been among the most repressive in the free world.
"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," McLachlin wrote.
"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 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," she noted.
"Between these two extremes lies the option of a defence that would allow publishers to escape liability if they can establish that they acted responsibly 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," she added.
"In my view, the third option, buttressed by the argument from [Charter of Rights and Freedoms] principles advanced earlier, represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society."
The ruling was based on a case in which The Toronto Star had claimed a defence of "responsible journalism" in its appeal of a 2007 verdict ordering it to pay $1.5 million in damages to an Ontario businessman. The Ontario Court of Appeal overturned that verdict last year and ordered a new trial. In turn, Canada's top court upheld the appeal court decision this week.
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Complete text: Supreme Court of Canada decision on 'responsible communication'