Court sets licence for libel

Compared to newspapers, radio and television, many bloggers, tweeters and online bulletin-board posters are cavalier about, or recklessly ignorant of, defamation law.

Unrestrained by, and even disdainful of, the editorial review and risk-management practices traditional media employ to avoid being sued for defamation, some online amateurs publish opinions and stories mainstream journalism wouldn't dare touch for fear of liability.

And a couple of fairly recent landmark, but much misunderstood, Supreme Court of Canada decisions have only emboldened online commentators.

Canada's civil law of defamation underwent a sea change in late 2009. A pair of year-end judgments rendered by the Supreme Court created a new defence to defamation lawsuits called "responsible communication."

Until these twin decisions, someone facing a defamation suit -- called libel if the allegedly defaming words were written or recorded in a permanent form, slander if orally stated -- had to prove the truth of the published statement to defeat a claim. Often, in practical terms, this was tough to do in the rush to deadline to get the news out.

It amounted to having to be able to warrant each and every published fact is true, or face liability for damages if what was published, or even just some of it, turned out to be untrue.

The seminal of the two decisions, called Grant v. Torstar Corp., involved a libel suit against the Toronto Star newspaper and one of its reporters. The companion decision likewise involved a libel action against a newspaper, the Ottawa Citizen.

In the trial and provincial appellate courts both newspapers had relied on a defence everyone -- plaintiffs, defendants, judges -- called "responsible journalism."

But our highest court didn't like that term. The Supreme Court rechristened the defence "responsible communication." It did so in light of the increasing role of bloggers and other online commentators in reporting on politics and engaging in public-policy debates and commentary. The court said it wanted to ensure the defence is available "to anyone who publishes material of public interest in any medium."

"(T)he 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," Chief Justice McLachlin wrote on behalf of the court. "These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets."

In a nutshell, the defence is available if the impugned comments are on a topic of public interest and if the publication was reasonable -- in the sense that the publisher diligently attempted to verify the defamatory allegations before disclosing them to the world.

What's reasonable diligence depends on the circumstances. However, the court suggested factors to be considered -- the seriousness of the allegation, the public importance of the matter, the degree of urgency, the status and reliability of the source, whether the defamed person's side of the story was sought and fairly reported, and whether inclusion of the defamatory statement was justifiable in the context of the report.

Unfortunately, the court didn't stop there. In an almost cursory comment, it went on to suggest bloggers and other online authors might in future be judged by a different yardstick.

"While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike," the court said, "the applicable standards will necessarily evolve to keep pace with the norms of new communications media."

This comment has been seized upon by some bloggers and cyberspace commentators to argue the legal standards by which mainstream journalists are judged don't apply to them. Some interpret it as a licence to say virtually anything about anybody, evidence be damned. They believe the Supeme Court has now sanctioned a lower degree of diligence in investigating the accuracy or truth of their reports than required of mainstream media.

It's a bogus argument, but one already surfacing in our courts.

Whether a statement is defamatory does not depend on where it's made. If a false statement alleging someone is an axe murderer or pedophile or closet Nazi is defamatory in a newspaper, it's just as defamatory when posted in a blog. Different media don't yield different results. All voices in the public arena, whether in traditional media or the blogosphere, still play by the same rules. Until an online defamation case that raises the "responsible communication" defence lands in the lap of the Supreme Court for determination, no one knows the precise extent of the protection this new defence might provide cyberspace authors.

Solid journalism -- whether in cyberspace or mainstream media -- on important issues of public interest deserves a defence of "responsible communication."

But online publishers shouldn't expect the legal refuge the Supreme Court has so carefully crafted to be a shield for inaccurate, careless or unfair reporting or commentary.

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition February 9, 2012 A11