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Canada moves toward expanded libel defence
By Steven | January 16, 2008
Canada is finally jumping on the US, UK, Australian, South African and NZ bandwagon and providing protection to political (and other public-interest) speech against defamation actions. The Ontario Court of Appeal has created a Reynolds-type privilege for “responsible journalism”. (It’s all obiter, though, and the Canadian Supreme Court has yet to confirm the new direction).
They’ve gone with the UK’s Reynolds/Jameel form of the defence, which is not closely limited to political speech, as in NZ and Australia.
Still, this case helps confirm that our courts are likely to look to the factors set out by Lord Nicholls in Jameel as indications of whether journalists are acting responsibly, and are therefore protected by the defence. This underscores the importance of journalists behaving in line with those factors if they want this extra defamation protection. For those unfamiliar with them, here’s an outline (my book contains more detailed guidance):
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of the information, and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment is sought from the [plaintiff.] He may have information others do not possess or have not disclosed. An approach to the [plaintiff] will not always be necessary.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
- The circumstances of the publication, including timing.
Note that there are some who say this is unfair to plaintiffs whose reputation has been besmirched by false, but responsible journalism, because they are left without a remedy. I’m not one of them. One of the key factors in the question of “responsibility” is getting and reporting the other side – so almost all plaintiffs will at least be given a platform to put their views.
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