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The Right to be Wrong

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It's being hailed as a major victory for press freedom, but last week's Supreme Court of Canada rulings creating a new libel defence pose the question: Will we see a difference when we read the paper, turn on newscasts or click open a website?

The defence of "responsible communication on matters of public interest" means the media may not have to prove every fact or allegation it reports. Truth remains a defence to libel, of course, and it's not asking too much of journalists to get their facts straight.

But the new defence holds journalists to the legal standard expected of other professions.

If a bridge collapses, it may not be the fault of the engineer who designed it. The question is whether the steps taken to build the bridge were reasonable and in keeping with the best practices of the profession.

So instead of expecting journalists to be perfect and to get everything right, the defence essentially gives them the right to be wrong. And if an error is found to have sullied someone's reputation, a libel claim may be defeated. The focus becomes what was done to research the story and whether the journalist made every effort to be accurate and fair.

This may sound like a recipe for the worst excesses of "gotcha" journalism, but hear me out. This right to be wrong is an extremely limited one, and only comes into play for important stories on subjects of public interest.

The heart of this defence is the need to ensure -- and encourage -- news coverage of major issues that is timely, thorough and balanced.

As Chief Justice Beverley McLachlin pointed out in one of the rulings, "free expression is essential to the proper functioning of democratic governance." The "productive debate" that fuels our system of government, she added, is dependent "on the free flow of information."

The new defence is based on a broad definition of what's considered of public interest. The term is not "synonymous with what interests the public" and would not apply to "mere curiosity or prurient interest" in the private lives of public figures or celebrities.

But the subject need not be of national importance or attract a large audience. A mining development in a remote area, for instance, would be of local interest but also involves wider issues of government regulation and proper use of a public resource. "It is enough," McLachlin wrote, "that some segment of the community would have a genuine interest in receiving information on the subject."

Stories about government and politics obviously fall within the definition, she said, but so do subjects as diverse as science, the environment, religion and the arts.

To determine whether the media acted responsibly, the court devised a list of factors to be considered, including the seriousness of the allegations, the urgency of making the story public, the reliability of the sources consulted and the efforts made to contact or interview the person defamed. These are simply the elements of good journalism, now enshrined in law.

These criteria are based on the "responsible journalism" defence developed in Britain over the past decade. But our court deliberately chose the term "responsible communication" to signal that the defence is available to "journalists and non-journalists alike... publishing material of public interest in any medium," including the Internet.

The court is recognizing the shift away from traditional media to the online world. A blogger sued for defamation can seek refuge behind the defence if the story is important and reported in a way that meets accepted journalistic standards.

The rulings also send a message that serious journalism on important stories will be encouraged and will be afforded greater protection under the law.

This is unlikely to usher in a golden age of investigative reporting, especially at a time when newsroom budgets are tight, journalists are being laid off and some newspapers and television stations are under a death watch.

News organizations that have shied away from doing stories for fear of being sued will continue to do so. But those with a tradition of digging into stories can take comfort in knowing their efforts will be recognized and possibly rewarded.

To answer the opening question, the news we read, see and hear may get a bit edgier. Stories once spiked as risky or borderline may now see the light of day.

And that's good news for everyone.

Dean Jobb, author of the textbook Media Law for Canadian Journalists, is an associate professor of journalism at the University of King's College in Halifax.

Republished from the Winnipeg Free Press print edition January 2, 2010 H6

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