Top court creates libel defence for press

[Bass ackwards]

Shared with the usual caveats, from the Canadian Press:

Top court creates libel defence for press

By Mike Blanchfield, THE CANADIAN PRESS

OTTAWA - The Supreme Court of Canada offered journalists and bloggers a new defence against libel Tuesday in a pair of rulings that were hailed as a landmark victory for free speech.

The rulings effectively exonerated the Toronto Star and Ottawa Citizen newspapers and created the new "responsible journalism" defence that will give reporters more leeway to pursue controversial stories as long as they are deemed to be in the public interest.

Media lawyers hailed the creation of the new defence as a major step towards reducing so-called libel chill, which prompts journalists to back away from contentious stories for fear of being sued, often by powerful interests with deep pockets to pay their lawyers.

The rulings also saved the two newspapers from paying out more than $1.5 million in damages, including $1 million for punitive damages against the Star, one of the largest such awards in Canadian libel history.

The Star story in question was about controversial plans for a golf course, while the Citizen's articles scrutinized the activities of a former police officer.

The rulings mean journalists can make factual errors, but as long as they take a series of steps to ensure fairness in stories that are deemed to be in the public interest, they cannot be successfully sued for libel.

Chief Justice Beverly McLachlin, writing for the unanimous 9-0 court, said the existing libel defences were too restrictive and contrary to the free expression guarantees in the Charter of Rights and Freedoms.

"To insist on court-established certainty in reporting on matters of public interest may have the effect not only of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate, but also 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."

The rulings were hailed by media lawyers and journalism organizations as a major step towards modernizing Canada's archaic defamation law, bringing it in line with other jurisdictions such as the United Kingdom and Australia.

A broad coalition of organizations, including PEN Canada, the Canadian Civil Liberties Association, the CBC, the Globe and Mail newspaper and others supported the high court appeal by the Star and the Citizen.

"It's probably the most important decision the Supreme Court's ever decided on the law of libel. It modernizes our laws to better reflect freedom of speech and that's in the public interest," said Paul Schabas, the Star lawyer, who represented the newspaper in the defamation case brought by Ontario businessman Peter Grant.

"It means that the media and anybody else who's acting responsibly can put something out for public debate and not be chilled because they can't ultimately prove that it's true in a court of law years later."

The Supreme Court upheld an earlier Ontario Court of Appeal ruling that struck down Grant's $1.5-million libel award and ordered a new trial.

The Star's July 23, 2001, front-page article focused on opposition by cottagers to Grant's plans to expand a golf course.

The court action turned on a published quote by one cottager, who said: "Everyone thinks it's a done deal because of Grant's influence - but most of all his Mike Harris ties."

Grant was a friend and campaign donor to Ontario's former Conservative premier Mike Harris.

"Had this new defence not been established we'd have been in the Dark Ages. So that's why it is so critical that we are in the 21st century now," said Ottawa lawyer Richard Dearden.

Dearden represented the Citizen in its reporting of the unusual saga of a former Ontario Provincial Police officer, who travelled to New York City with his dog after the Sept. 11 terrorist attacks to hunt for survivors at Ground Zero.

The newspaper produced three articles that cast the activities of Danno Cusson in a negative light. Some of the details and quotes in the articles were deemed defamatory, and Cusson was awarded $125,000 in a verdict upheld by the provincial appeal court.

The Supreme Court ordered a new trial striking down Cusson's financial award.

"There's now room been made under the Charter of Rights for freedom of expression, that if you don't prove every fact true in a court of law there's still room that your public interest story, done responsibly, is protected and you can't get sued for libel," said Dearden.

Link to article:
http://cnews.canoe.ca/CNEWS/MediaNews/2009/12/22/12244756-cp.html

 

[Bass ackwards]

Since, like many of the people on this site, I have a longstanding dislike of the press (which I tend to think of as "a return of courtesies"), the title of the CP article made me suspicious.

But even apart from the fact that, amongst others, both media lawyers and the CBC are all for it (seldom a good sign) and the fact that the two plaintiffs mentioned are
1) "a known conservative"
2) a cop (a likely conservative),

it's this statement which, to me, simply does not bode well...

...the new "responsible journalism" defence that will give reporters more leeway to pursue controversial stories as long as they are deemed to be in the public interest.

Who will decide what the public interest is?
What "responsible journalism" is?

Or isn't.

 

[George Wallace]

As stated on the news a couple of days ago, this lifts some of the tension off the heads of Journalist, but it still does not give them free rein to publish anything that they want.  They are still liable should they print false statements.  They are still being held to a high standard of doing proper research into their articles.  Although this change may seem to be lenient towards the Press, they are still expected to exhibit responsible journalism. -- Facts, not Fiction.



However, there is another problem here:

We now have the Supreme Court of Canada writing Law, instead of upholding it.  Parliament passes Laws, not the Supreme Court.

 

[vonGarvin]

However, there is another problem here:

We now have the Supreme Court of Canada writing Law, instead of upholding it.  Parliament passes Laws, not the Supreme Court.

Agreed.  There are three branches to government: legislative, executive, and judicial.  I believe that our Supreme Court sometimes like to think it is one of the other two; however, in this case, I think they were interpreting parts of an existing law.  Not sure...

 

[The Bread Guy]

Anyone who's interested can find the decision here:
http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html

Who will decide what the public interest is?
What "responsible journalism" is?

THAT's my concern as well, and something I'm going to find out more about.....

 

[Retired AF Guy]

However, there is another problem here:

We now have the Supreme Court of Canada writing Law, instead of upholding it.  Parliament passes Laws, not the Supreme Court.

Are you talking about the SCC in general or in this case in particular?

 

[brihard]

We now have the Supreme Court of Canada writing Law, instead of upholding it.  Parliament passes Laws, not the Supreme Court.

Respectfully, George, I disagree. The SCC is an appellate court; they're ruling generally are on very narrow points of law, although the effect of the decision may be seemingly disproportionate with the nature of the technicalities in question.

In this case the SCC was protecting a very well established freedom of fair comment that is designed to protect the public discourse. It's been held for a long time that the truth is an absolute defense to charges of slander or libel, but there was no onus on an individual subject to public scrutiny to provide the information necessary to arrive at that truth. With this decision the court has affirmed the right to publish so long as a reasonable effort to arrive at the truth has been made. "No comment" can no longer serve to stonewall a news story for fear of being prosecuted for libel. Yes, the potential exists for this to be abused, but such is always the case.

I'm personally of the view that the freedom of expression and all the associated rights regarding publication, &c. are among the most valuable protections we as a society have. If we are to err, I prefer that we err on the side of the protection of the public discourse. When the potential for abuse of this protection is weighed against the beneficial protections that have been further extended to the media, I think that the increased ability of the media to carry out their responsibility of scrutiny outweighs the possible risks.

I applaud this verdict- in an increasingly politically correct age, anything that protects the freedom of expression tends to be good in my books.

 

[Pistos]

I applaud this verdict- in an increasingly politically correct age, anything that protects the freedom of expression tends to be good in my books.

On principle I agree, however my observation is that freedom of expression is generally reserved for liberals, leftist, and loonies.  Rarely are conservative ideas or traditional values welcomed under the umbrella of inclusion, especially when they run contrary to the agendas of the 'enlightened'. Truth...facts....proof - these have been our friends and allies against spurious and mean-spirited attacks but it would seems that they no longer provide much security and protection.

 

[pjocsak]

George,

A minor point of clarification regarding the SCC making versus interpreting law,

Libel is a creature of the common law, therefore it is by its very nature court made law.

Regards,

IC

 

[brihard]

On principle I agree, however my observation is that freedom of expression is generally reserved for liberals, leftist, and loonies.  Rarely are conservative ideas or traditional values welcomed under the umbrella of inclusion, especially when they run contrary to the agendas of the 'enlightened'. Truth...facts....proof - these have been our friends and allies against spurious and mean-spirited attacks but it would seems that they no longer provide much security and protection.

Care to substantiate that? The eventual vindications of Ezra Levant, Mark Steyn & MacLeans, as well as the very important verdict recently handed down in the Boisson case show that our courts are willing to protect the freedoms of conservatives as well. Freedom of expression refers to the freedom from actual interference by the state. It doesn't mean the rest of society can't shout you down if they want to.

Conservative viewpoints tend to be those complained about in the various 'human rights tribunal' kangaroo courts, so they are naturally overrepresented in the sorts of proceedings that have been deemed state censorship. As these have increasingly been challenged in real courts, however, we've found that our courts are objectively supportive of freedom of expression, even when it flies in the face of being PC. The principle that speech needs to actually, concretely incite hate has been well adhered to by the courts, even if it's had the result of letting some reall asshole continue to spew some pretty vile stuff.

I still view the HRTs as the only real threat to our freedom of expression in Canada, but fortunately they're being increasingly neutered. Even the CHRC itself has deemed section 13(1) (the hate speech provision) of the Human Rights Act unconstitutional. It's not a binding decision, but it shows which way the winds are blowing.

Eventually I hope to see the HRTs done away with entirely - there's no need in our society for these quasi-courts when real means with real due process exist to redress legitimate grievances.

 

[Dennis Ruhl]

George,

A minor point of clarification regarding the SCC making versus interpreting law,

Libel is a creature of the common law, therefore it is by its very nature court made law.

Unless superceded by statute.

http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-d-7/latest/rsa-2000-c-d-7.html

 

[Bass ackwards]

When I first posted this article, neither activist judges nor censorship had even occurred to me.
Granted, both are bad things and are problems in today's society -to a greater or lesser extent- but what had me all in a flutter was that the press can now worry even less about the consequences of libeling someone.

I'm going to highlight part of two comments from this thread to expand on what I was saying. I hope both gentlemen realize I'm not trying to shoot them down (in fact, I don't even necessarily disagree with where they're coming from)  .

The first was George Wallace stating:
They are still being held to a high standard of doing proper research into their articles.  Although this change may seem to be lenient towards the Press, they are still expected to exhibit responsible journalism.

I think my biggest problem with this is the use of the word "still".
Have they ever been held to these standards ?
And if so, by who(m) ? As far as I know, it's up to the people (readers/watchers/listeners) to hold them to these standards. It just doesn't seem to be happening. Not now, not before.

The second comment comes from Brihard who writes:
...I think that the increased ability of the media to carry out their responsibility of scrutiny outweighs the possible risks.

Their "responsibility of scrutiny".
Recently on this site, it was mentioned that the Associated press assigned no less than eleven people to fact check Sarah Palin's new book. On the other hand, they never bothered to assign anyone to fact-check either of Barack Obama's two books.
This is just one example that I used because it's fairly recent.
Shouldn't they be scrutinizing everyone ? Not just the ones they don't like ?

My point here is that -in my opinion- we're not seeing responsible journalism. We're not seeing high standards of anything -except partisanhip and sensationalism.

If the people won't hold them accountable and the government can't (and shouldn't be able to), then at least don't make it even harder for some poor bugger, who's gotten on their bad side, to be able to take them to task when they cross the line. 

 

 

[Dennis Ruhl]

The first was George Wallace stating:
They are still being held to a high standard of doing proper research into their articles.  Although this change may seem to be lenient towards the Press, they are still expected to exhibit responsible journalism.

I think my biggest problem with this is the use of the word "still".
Have they ever been held to these standards ?
And if so, by who(m) ? As far as I know, it's up to the people (readers/watchers/listeners) to hold them to these standards. It just doesn't seem to be happening. Not now, not before.

I am not sure that there is ever such a thing as neutral or unbiased journalism, so why do people pretend?  There are more Liberals at CBC than at a Tamil Tigers fundraiser and it is obvious to everyone but themselves.  The danger in expanding freedom from defamation actions is that, although every file will have a due diligence questionaire, it may be only lip service to fend off actions.  Evidence not supporting their viewpoint will not be in the file, so proving they ever saw it will be tough.