Journalistic press freedom and fair comment defence decayed in UK’s British Chiropractic Association v. Dr. Singh

Limits of journalistic press freedom for qualified-privilege and fair comment are hotly debated in jurisdictions around the world as courts try to balance the public interest in freedom of information with private reputational interests battling defamation. Last year, TheCourt covered Grant v. Torstar Corp., 2009 SCC 61 (“Torstar Corp.”), a decision that ranked as the top civil judgment at our First Annual OZZY Awards.

SCC’s Torstar Corp. involved Canada’s largest daily newspaper, the Toronto Star and its reporter being sued for libel under the tort of defamation. Peter Grant, a golf course developer took offence to an article entitled, “Slicing through the rules: Genesis of a land deal – How [former Ontario Conservative Party premier Mike] Harris’ friends overcame fish habitat controls to build their dream.”  The article criticized a proposed private golf course development for its environmental impact and behind the scenes political influence. Torstar Corp. worked its way up to the SCC when the trial court rejected the possibility of an “expanded qualified privilege defence based on a concept of public interest responsible journalism.” The Court of Appeal then overturned the trial decision on a procedural matter that left a question of law about a new “responsible journalism defence” to the jury. The case then arrived at the SCC to decide the nature of a new defence for journalists. After much deliberation, the SCC expanded a new qualified privilege defence, dubbed the “defence of responsible communication,” that seeks to protect the public interest while allowing for defenses of truth and fair comment from going too far by allowing journalists with a carte blanche to write unfounded statements without limits in the name of this new defence.

The debate for journalistic press freedom continues across the pond in the UK. This year, the England and Wales Court of Appeal (Civil Division) (“EWCA”) released British Chiropractic Association v. Dr. Singh [2010] EWCA Civ 350 (“BCA v. Dr. Singh”) where a defence for responsible journalism suffered from non-existence, but succeeded on the basis of a clarified defence of fair comment.

What’s the difference between fact and honest opinion anyway?

In this case, the British Chiropractic Association (“BCA”), a British medical association consisting of a membership of chiropractic professionals, took offence to science journalist Dr. Simon Singh’s article entitled “Beware the Spinal Trap” published in a UK national daily newspaper, The Guardian where he was employed. His article, featured in the “Comment and Debate” section, aimed criticism at the BCA particularly in the following passage:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

At issue in this case was whether Dr. Singh’s assertions were based on fact and therefore consisted of fair comment. The elements for the defence of fair comment to succeed require the defendant to show that the offending statement amount to an opinion that was honestly held and based on verifiable, true facts. As a science writer, the notion of fact floated to the surface. In separating the definition of fact and comment, the EWCA considered the alleged defamatory words as to “what they actually mean” and then compared it whether it “has crossed the boundary of reasonableness.”

Fair comment “decayed” with imprecision

Lord Judge, Lord Chief Justice of England and Wales considered the fact that BCA sued Dr. Singh and not The Guardian, a prominent British newspaper for which the article was produced. The EWCA noted this as a clear intention by BCA to silence one of its critics, rather than attack the nature of the publication itself. With this in mind, the court embarked upon its analysis by differentiating “matters of verifiable fact” from comment, asking: was there evidence to support Dr. Singh’s alleged material claims?

It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions.

The EWCA then went on to analyse the meanings of the word words “not jot of evidence,” “bogus,” and “happily” to conclude that fact and comment could not be precisely delineated:

Our decision does not seek to collapse or erode the general distinction between fact and comment: it seeks to relate the distinction to the subject-matter and context of the particular article and the dispute to which it relates.

The EWCA ruled in favour of Singh by dismissing the lower court’s reasoning:

…the [lower court] judge erred in his approach to the need for justification by treating the statement that there was not a jot of evidence to support the BCA’s claims as an assertion of fact. It was in our judgment a statement of opinion, and one backed by reasons.

Dr. Singh won his appeal and the judgement closed with what can be interpreted as a clarification of the application of the defence in the UK:

…fair comment may have come to ‘decay with … imprecision.’ ‘Honest opinion’ [however] better reflects the realities.

Consequently, this case clarifies the defence of fair comment as not simply requiring proof of an “honest opinion.” The defendant must show that an honest opinion was reasonably made based on verifiable facts. As such, this ruling can provide persuasive support to Canada’s defence of responsible journalism that protects future allegations of defamation against journalists. Journalistic press freedom may have drifted off the mark that today ought to be protected by factual truths, limited from unbridled defamatory statements, and in support of freedom to express honest opinions in published material.

Troubling implications for journalistic press freedom

Two weeks after Singh won his appeal, the BCA issued a press release stating that it dropped this lawsuit against him. However, following the costly rigours of litigation, the implications of defamation lawsuits against journalists continue beyond the courtroom’s legal debate as Singh is reported to have since left The Guardian. It is also a reminder of the power of SLAPP (“Strategic Lawsuits Against Public Participation”) where a litigant brings a lawsuit without necessarily the expectation of winning a case— it uses the threat of actual litigation as a means to silence criticism.

In my opinion, these post-trial results in the UK indicates the dangers of lawsuits that may make journalists weary of liability that subsequently undermines their sense of press freedom. This is compounded by the risk of unemployment at media outlets by the simple threat or actual legal proceeding, regardless of the outcome. Thankfully, based on the outcome of this case, private organizational interests did not weigh heavier in the judge’s mind than publishing verifiable material facts mixed with opinion and supported by a refreshed defence of fair comment. Canada previously opened its doors slightly wider than UK’s BCA v. Dr. Singh with defamation reform led last year by SCC’s Torstar Corp., yet given that our jurisprudence quotes widely from British legal developments, this UK case could have positive implications for a more precise application of fair comment Canada that upholds the “defence for responsible communication.” Responsible journalists, including this writer at The Court, can only hope that creating and upholding Canada’s new responsible journalism defence in favour of freedom of expression will continue to protect future reasonable commentary by journalists on a wide variety of media platforms— including this one!