December 22, 2009
Grant v. Torstar

In a landmark decision, the Supreme Court of Canada has added a new defence to Canada’s Defamation law: Responsible Communication on a matter of public interest. This decision, decided on the same day as the Cusson case, is the principal decision articulating the applicable principles.

Chief Justice McLachlin wrote for the court, with Justice Abella dissenting on the decision to let the jury decide whether the defence applies in the circumstances. Justice Abella would have kept the defence in the hands of the judge.

The court began with a review of the value of freedom of expression:

[47] The guarantee of free expression in s. 2(b) of the Charter has three core rationales, or purposes: (1) democratic discourse; (2) truth-finding; and (3) self-fulfillment: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p.976. These purposes inform the content of s. 2(b) and assist in determining what limits on free expression can be justified under s. 1.

The freedom includes the right to communicate false information:

[52] By contrast, the first two rationales for free expression squarely apply to communications on matters of public interest, even those which contain false imputations. The first rationale, the proper functioning of democratic governance, has profound resonance in this context. As held in WIC Radio, freewheeling debate on matters of public interest is to be encouraged, and must not be thwarted by “overly solicitous regard for personal reputation” (para. 2). Productive debate is dependent on the free flow of information. The vital role of the communications media in providing a vehicle for such debate is explicitly recognized in the text of s. 2(b) itself: “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” (emphasis added).

Responsibility is essential to exercise of the freedom, but it doesn’t include a guarantee of truth:

[53] Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court-established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.
[54] The second rationale — getting at the truth — is also engaged by the debate before us. Fear of being sued for libel may prevent the publication of information about matters of public interest. The public may never learn the full truth on the matter at hand.
[55] Against this, it is argued that false statements cannot advance the purposes of s. 2(b). This contention, however, is belied by the fact the existing defence of privilege concedes: sometimes the public interest requires that untrue statements should be granted immunity, because of the importance of robust debate on matters of public interest (e.g. Parliamentary privilege), or the importance of discussion and disclosure as a means of getting at the truth (e.g. police reports, employment recommendations).

The court revisited the value of defamatory expression, and reputation:

[57] I conclude that media reporting on matters of public interest engages the first and second rationales of the freedom of expression guarantee in the Charter. The statement in Hill (at para. 106) that “defamatory statements are very tenuously related to the core values which underlie s. 2(b)” must be read in the context of that case. It is simply beyond debate that the limited defences available to press-related defendants may have the effect of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth.
[58] This brings me to the competing value: protection of reputation. Canadian law recognizes that the right to free expression does not confer a licence to ruin reputations. In assessing the constitutionality of the Criminal Code’s defamatory libel provisions, for example, the Court has affirmed that “[t]he protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society”: R. v. Lucas, [1998] 1 S.C.R. 439, per Cory J., at para. 48. This applies both to private citizens and to people in public life. People who enter public life cannot reasonably expect to be immune from criticism, some of it harsh and undeserved. But nor does participation in public life amount to open season on reputation.

The court then reiterated a concern for privacy within defamation law:

[59] Related to the protection of reputation is a concern for personal privacy. This Court has recognized that protection of personal privacy is “intimately related” to the protection of reputation: Hill, at para. 121. While in other contexts privacy protection has been recognized as “essential for the well‑being of the individual” (R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427, per La Forest J.) and “an essential component of what it means to be ‘free’” (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 113, per L’Heureux‑Dubé J.), it does not figure prominently in defamation jurisprudence. One reason for this is that defamation law is concerned with providing recourse against false injurious statements, while the protection of privacy typically focuses on keeping true information from the public gaze. Legislation in several provinces provides a separate cause of action for the violation of privacy: see Privacy Act, R.S.B.C. 1996, c. 373, s. 1(1); The Privacy Act, R.S.S. 1978, c. P‑24, s. 2; The Privacy Act, R.S.M. 1987, c. P125, s. 2(1); Privacy Act, R.S.N.L. 1990, c. P‑22, s. 3. This said, protection of privacy may be a factor complementing the protection of reputation in the development of defamation law (see paras. 102 and 111 below).

In the end, a new defence would serve all:

[62] The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. As Kirby P. stated in Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680 (C.A.), at p. 700: “The law of defamation is one of the comparatively few checks upon [the media’s] great power”. The requirement that the publisher of defamatory material act responsibly provides accountability and comports with the reasonable expectations of those whose conduct brings them within the sphere of public interest. People in public life are entitled to expect that the media and other reporters will act responsibly in protecting them from false accusations and innuendo. They are not, however, entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose.

The court concluded that the balance of the law had to shift:

[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 statements 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.

A review of the jurisprudence outside Canada yielded quotes benefiting the editorial process:

[73] … The House of Lords also emphasized that the assessment of responsible journalism is not an invitation for courts to micro-manage the editorial practices of media organizations. Rather, a degree of deference should be shown to the editorial judgment of the players, particularly professional editors and journalists. For instance, a court should be slow to conclude that the inclusion of a particular defamatory statement was “unnecessary” and therefore outside the scope of the defence. As Lord Hoffmann put it:

The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting. [para. 51]

The House of Lords also made clear that the defence is available to “anyone who publishes material of public interest in any medium”, not just journalists or media companies: Jameel, per Lord Hoffmann, at para. 54; Seaga v. Harper, [2008] UKPC 9, [2008] 1 All E.R. 965.

The court concluded that the Canadian path should be a middle road:

[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 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 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.
[86] In my view, the third option, buttressed by the argument from Charter 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 Elements of the Defence of Responsible Communication

Qualified privilege should remain intact, given that “the duties and interests of people communicating and receiving job references or police reports are definable with some precision and involve a genuine reciprocity”, and recognition of that rests in social utility.

The new defence should also apply to all, not just journalists.

[96] … 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.
[97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

The Test for the new Defence of Responsible Communication on Matters of Public Interest

[98] …First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

A Matter of Public Interest

[101] In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. The judge’s role at this point is to determine whether the subject matter of the communication as a whole is one of public interest. If it is, and if the evidence is legally capable of supporting the defence, as I will explain below, the judge should put the case to the jury for the ultimate determination of responsibility.
[102] How is “public interest” in the subject matter established? First, and most fundamentally, the public interest is not synonymous with what interests the public. The public’s appetite for information on a given subject — say, the private lives of well-known people — is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination. Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest. It is enough that some segment of the community would have a genuine interest in receiving information on the subject.
… [105] To be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.

The public interest is broad, and not confined to public figures or officials, as in the U.S.:

[106] Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a “public figure”, as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.

Was Publication of the Defamatory Communication Responsible?

The court then reviewed the Reynolds factors, and offered their own perspective on them:

(i) The Seriousness of the Allegation

[111] The logic of proportionality dictates that the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed. This factor recognizes that not all defamatory imputations carry equal weight. The defamatory “sting” of a statement can range from a passing irritant to a blow that devastates the target’s reputation and career. The apprehended harm to the plaintiff’s dignity and reputation increases in relation to the seriousness of the defamatory sting. The degree to which the defamatory communication intrudes upon the plaintiff’s privacy is one way in which the seriousness of the sting may be measured. Publication of the kinds of allegations traditionally considered the most serious — for example, corruption or other criminality on the part of a public official — demand more thorough efforts at verification than will suggestions of lesser mischief. So too will those which impinge substantially on the plaintiff’s reasonable expectation of privacy.

(ii) The Public Importance of the Matter

[112] Inherent in the logic of proportionality is the degree of the public importance of the communication’s subject matter. The subject matter will, however, already have been deemed by the trial judge to be a matter of public interest. However, not all matters of public interest are of equal importance. Communications on grave matters of national security, for example, invoke different concerns from those on the prosaic business of everyday politics. What constitutes reasonable diligence with respect to one may fall short with respect to the other. Where the public importance in a subject matter is especially high, the jury may conclude that this factor tends to show that publication was responsible in the circumstances. In many cases, the public importance of the matter may be inseparable from its urgency.

(iii) The Urgency of the Matter

[113] As Lord Nicholls observed in Reynolds, news is often a perishable commodity. The legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news. But nor should a journalist’s (or blogger’s) desire to get a “scoop” provide an excuse for irresponsible reporting of defamatory allegations. The question is whether the public’s need to know required the defendant to publish when it did. As with the other factors, this is considered in light of what the defendant knew or ought to have known at the time of publication. If a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity without compromising the story’s timeliness, this factor will weigh in the plaintiff’s favour.

(iv) The Status and Reliability of the Source

[114] Some sources of information are more worthy of belief than others. The less trustworthy the source, the greater the need to use other sources to verify the allegations. This applies as much to documentary sources as to people; for example, an “interim progress report” of an internal inquiry has been found to be an insufficiently authoritative source in the circumstances: Miller v. Associated Newspapers Ltd., [2005] EWHC 557 (Q.B.) (BAILII). Consistent with the logic of the repetition rule, the fact that someone has already published a defamatory statement does not give another person licence to repeat it. As already explained, this principle is especially vital when defamatory statements can be reproduced electronically with the speed of a few keystrokes. At the same time, the fact that the defendant’s source had an axe to grind does not necessarily deprive the defendant of protection, provided other reasonable steps were taken.
[115] It may be responsible to rely on confidential sources, depending on the circumstances; a defendant may properly be unwilling or unable to reveal a source in order to advance the defence. On the other hand, it is not difficult to see how publishing slurs from unidentified “sources” could, depending on the circumstances, be irresponsible. (emphasis added)

(v) Whether the Plaintiff’s Side of the Story Was Sought and Accurately Reported

[116] It has been said that this is “perhaps the core Reynolds factor” (Gatley, at p. 535) because it speaks to the essential sense of fairness the defence is intended to promote, as well as thoroughness. In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond: see, e.g. Galloway v. Telegraph Group Ltd., [2004] EWHC 2786 (Q.B.) (BAILII), per Eady J., at paras. 166-67. Failure to do so also heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial.

[117] The importance of this factor varies with the degree to which fulfilling its dictates would actually have bolstered the fairness and accuracy of the report. For example, if the target of the allegations could have no special knowledge of them, this factor will be of little importance: see Jameel, at paras. 35, and 83-85, where the House of Lords held that the plaintiff (whose group of companies had been put on a terrorism monitoring list) could not realistically have added anything material to the story because the relevant actions of the Saudi and U.S. governments were secret and entirely beyond his control.

(vi) Whether Inclusion of the Defamatory Statement was Justifiable

[118] As discussed earlier (paras. 108-9), it is for the jury to determine whether inclusion of a defamatory statement was necessary to communicating on a matter of public interest. Its view of the need to include a particular statement may be taken into account in deciding whether the communicator acted responsibly. In applying this factor, the jury should take into account that the decision to include a particular statement may involve a variety of considerations and engage editorial choice, which should be granted generous scope.

(vii) Whether the Defamatory Statement’s Public Interest Lay in the Fact That it Was Made Rather Than its Truth (“Reportage”)

[119] The “repetition rule” holds that repeating a libel has the same legal consequences as originating it. This rule reflects the law’s concern that one should not be able to freely publish a scurrilous libel simply by purporting to attribute the allegation to someone else. The law will not protect a defendant who is “willing to wound, and yet afraid to strike”: “Truth” (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997 (P.C.), at p. 1001, per Lord Denning. In sum, the repetition rule preserves the accountability of media and other reporting on matters of public interest. The “bald retailing of libels” is not in the public interest: Charman, per Sedley LJ., at para. 91. Maintaining the repetition rule is particularly important in the age of the internet, when defamatory material can spread from one website to another at great speed.
.
[120] However, the repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity. This exception to the repetition rule is known as reportage. If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided: (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made. See Al‑Fagih v. H.H. Saudi Research & Marketing (U.K.) Ltd., [2001] EWCA Civ 1634 (BAILII), at para. 52; Charman; Prince Radu of Hohenzollern v. Houston, [2007] EWHC 2735 (Q.B.) (BAILII); Roberts v. Gable, [2007] EWCA Civ. 721, [2008] 2 W.L.R. 129 (C.A.). (emphasisadded)

(viii) Other Considerations

[122] As noted, the factors serve as non-exhaustive but illustrative guides. Ultimately, all matters relevant to whether the defendant communicated responsibly can be considered.

Journalists will be encouraged to see that the court neutralized “tone” as a factor against them:

[123] Not all factors are of equal value in assessing responsibility in a given case. For example, the “tone” of the article (mentioned in Reynolds) may not always be relevant to responsibility. While distortion or sensationalism in the manner of presentation will undercut the extent to which a defendant can plausibly claim to have been communicating responsibly in the public interest, the defence of responsible communication ought not to hold writers to a standard of stylistic blandness: see Roberts, at para. 74, per Sedley LJ. Neither should the law encourage the fiction that fairness and responsibility lies in disavowing or concealing one’s point of view. The best investigative reporting often takes a trenchant or adversarial position on pressing issues of the day. An otherwise responsible article should not be denied the protection of the defence simply because of its critical tone.

The court also noted that the journalist’s intended meaning is very relevant:

[124] If the defamatory statement is capable of conveying more than one meaning, the jury should take into account the defendant’s intended meaning, if reasonable, in determining whether the defence of responsible communication has been established. This follows from the focus of the inquiry on the conduct of the defendant. The weight to be placed on the defendant’s intended meaning is a matter of degree: “The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances” (Bonnick v. Morris, [2002] UKPC 31, [2003] 1 A.C. 300 (P.C.), per Lord Nicholls, at para. 25). Under the defence of responsible communication, it is no longer necessary that the jury settle on a single meaning as a preliminary matter. Rather, it assesses the responsibility of the communication with a view to the range of meanings the words are reasonably capable of bearing.

AND… “Malice” is irrelevant to this new defence:

[125] Similarly, the defence of responsible communication obviates the need for a separate inquiry into malice. (Malice may still be relevant where other defences are raised.) A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly.

The court then summarized the Required Elements:

[126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:
A. The publication is on a matter of public interest
and:
B. The publisher was diligent in trying to verify the allegation, having regard to:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff’s side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.

Finally, the court dealt with procedural issues:

[127] As a general rule, the judge decides questions of law, while the jury decides questions of fact and applies the law to the facts. As is the case in other actions, for example negligence trials, issues of fact and law cannot be entirely disentangled. Nevertheless, it is possible to arrive at the following allocation of responsibility on the defence of responsible communication, having regard to whether the issue is predominantly legal or factual, to the traditional allocations of responsibility in defamation trials, and to relevant legislation.
[128] The judge decides whether the statement relates to a matter of public interest. If public interest is shown, the jury decides whether on the evidence the defence is established, having regard to all the relevant factors, including the justification for including defamatory statements in the article.
[129] As in any trial by judge and jury, the judge may, upon motion, rule out the defence on the basis that the facts as proved are incapable of supporting the inference of responsible communication. This is consistent with the power of the judge in existing jurisprudence to withdraw the issue of malice from the jury where there is no basis for an inference of malice on the evidence.
[130] The defence of responsible communication does not require preliminary rulings from the jury on primary meaning, since it does not depend on the supposition of a single meaning. The jury should be instructed to assess the responsibility of the communication in light of the range of meanings the words are reasonably capable of bearing, including evidence as to the defendant’s intended meaning..

In the circumstances of the case, a new trial was ordered:

[136] The evidence revealed a basis for three defences: (1) justification; (2) fair comment; and (3) responsible communication on a matter of public interest. All three defences should have been left to the jury. It is unnecessary to deal further with the defence of justification; no error is alleged in the trial judge’s directions on this defence.
[137] Where the judge retains genuine doubt as to whether a given statement should be characterized as fact or opinion, the question should be left to the jury to decide: Scott v. Fulton, 2000 BCCA 124, 73 B.C.L.R. (3d) 392 (C.A.). In this case, it was open to the jury to consider the statement attributed to Dr. Clark that “[e]veryone thinks it’s a done deal” as a comment, or statement of opinion. The statement could be read as an idiomatic expression of an opinion about the likelihood of something, namely government approval, that had not yet come to pass. This would raise the defence of fair comment.
[138] The defence of fair comment was left to the jury at trial. However, I agree with the Court of Appeal, per Feldman J.A., that the trial judge erred in his charge to the jury on fair comment. He failed to instruct the jury that “since Mr. Schiller was the conduit for the comment and not its maker, the fact that he did not honestly believe it could not be used as a foundation for finding malice unless in the context of the article, he had adopted the comment as his own” (Feldman J.A., at para. 93). This recalls Binnie J.’s observation in WIC Radio that “defamation proceedings will have reached a troubling level of technicality if the protection afforded by the defence of fair comment to freedom of expression (‘the very lifeblood of our freedom’) is made to depend on whether or not the speaker is prepared to swear to an honest belief in something he does not believe he ever said” (para. 35). Additionally, as also held in WIC Radio, the “fair-minded” component of the traditional test should not form part of a charge on fair comment. For the reasons given by Feldman J.A., at paras. 83-94 of her reasons, these problems in the trial judge’s charge could have led the jury to wrongly conclude that the fair comment defence had been defeated by malice.
[139] It was also open to the jury to consider the critical “done deal” remark as a statement of fact. Read literally, it can be taken as an assertion that government approval for the development was actually already sealed, either formally behind closed doors or by tacit understanding. This raises the defence of responsible communication on a matter of public interest. The trial judge did not leave this or any similar defence to the jury.