December 4th, 2008
A quiet, but dramatic change is taking place in Canadian media law as courts across the country are beginning to shift the law of defamation in favour of freedom of speech. Last year, the Ontario Court of Appeal (“ONCA”) in Cusson v Quan, 2007 ONCA 771 [Cusson], took the bold move of creating an entirely new defence to the tort of defamation, plucked from a recent trend in UK law, known as public interest responsible journalism. The case has obtained leave to appeal to the Supreme Court of Canada (“SCC”) and will be heard in February, but now, even before the SCC can consider the issue, the ONCA has handed down yet another decision affirming this radical new law (see Grant v Torstar Corporation, 2008 ONCA 796 [Grant]), almost as if the Supreme Court’s blessing was a foregone conclusion.
Defamation has always been a bit of an odd duck in tort law. To make out its case, the plaintiff need only establish that the published words are capable of lowering his or her esteem. The plaintiff does not need to prove that the words were untrue, that the defendant was at fault or even that any damages resulted – falsity, fault, and damages are presumed in a defamation case. The onus lies with the defendant to raise one of several defences such as truth, privilege, or justification, many of which set notoriously high standards that defendants can rarely meet without considerable expense. In this regard, the media were not given any special consideration compared to any other defendant, meaning that the threat of defamation hung ominously over virtually every news story printed.
That all began to change in 2001 with a landmark case from the UK House of Lords known as Reynolds v Times Newspapers, 2 AC 127. For the first time, English law recognized the special duty the media have in providing information to the public, and the chilling effect that the threat of defamation can have on fulfilling this duty. Newspapers might shy away from reporting on controversial issues of great public importance in the face of costly defamation settlements should some of the information turn out to be unreliable or inaccurate. As a result, the House of Lords created a new defence to defamation which would absolve the defendant of liability if the information published was done in the good faith fulfillment of journalistic duties.
The decision only makes sense. Unrestricted debate, discussion and access to information are central features of any democratic society. In today’s world, the media play a central, indeed, unparalleled role in this process, so it makes sense the law would provide them special latitude to ensure that role can be fulfilled without restriction. But it was not until 2007 that Canadian law turned its mind to this problem in the ONCA decision of Cusson. The case concerned an Ontario Provincial Police Officer named Cusson who volunteered himself to search the rubble of the World Trade Centre for survivors in the aftermath of 9/11 with his trusty pet pooch, “Ranger.”
It turned out that Cusson was not a trained police K-9 handler and an Ottawa newspaper ran a series of stories on the fiasco that ensued with the New York Police Department. Cusson sued for defamation. In its decision, the ONCA unequivocally affirmed the public interest responsible journalism defence, noting that “democracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those, such as police officers, who exercise power and authority in our society.”
Cusson is awaiting hearing before the SCC, but now before that can happen, the ONCA has reaffirmed the defence in Grant. Likewise, judges in other jurisdictions are now looking to the Reynolds public interest responsible journalism defence as if it was a long-standing component of Canadian law (see Dhami et al v CBC et al, 2001 BCSC 1811, and Reaburn v Langley, 2008 BCSC 1342). While of course there exists a possibility that the top court would reverse this groundswell among lower courts when it gets around to considering Cusson, the support among courts for this new defence is almost unanimous. With the way things are going, by the time the SCC has anything to say about it, responsible journalism may already be old news.[filed: Torts]