Supreme Court establishes "responsible communication" defence

Geist-45X64.jpgPosted by Michael Geist
This week (Dec. 22) the Supreme Court of Canada established a new defence in defamation cases in Grant v. Torstar Corp., which it is calling the "responsible communication" defence. The defence is designed to provide greater protection for communications on matters of public interest. The court establishes several conditions to the test, including the scope of its application. In a big win for new media and bloggers, it concludes that the defence applies broadly:
A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, 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.
The court then outlines the the formulation of the defence, including whether the publication was a matter of public interest and a responsible communication. It summarizes the required elements as:
A. The publication is on a matter of public interest
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.

This is crucial decision for all publishers both big and small. It represents a major win for freedom of expression in Canada and should remove some of the libel chill that arises far too frequently.

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