Wednesday, March 19, 2014

How The Doctrine of "Responsible Journalism" Has Changed Journalism and Defamation Law in Canada and the UK

Rick Pildes

The press stories that broke the various scandals involving Rob Ford, Toronto's mayor, would not have been published without significant changes in Canadian defamation law that occurred in 2009, as a result of two decisions by the Supreme Court of Canada.  That's the argument of this fascinating lead story in the current edition of The Walrus.  These emerging changes are of broad comparative interest because they represent a distinct approach to defamation law from that in the United States.

In 2009, the Canadian Supreme Court law recognized the doctrine of "responsible journalism" as a legitimate defense to a defamation claim.    As the story describes the decision in Grant v. Torstar Corp., the Court held that "if a story is about a matter of public interest—that is, on a topic of legitimate public concern—and a journalist can prove that he or she did what was reasonable under the circumstances to uncover the truth, that constitutes a defence against libel. No longer would journalists have to prove the truth of what they said or wrote; they would only need to establish that the story involved the public interest and that they had done their jobs responsibly."  In adopting this new defense, Canada followed the lead of the then-House of Lords in England, which had transformed English defamation law in 2006 and 1999 decisions by embracing the "responsible journalism" defense.  UPDATE:  The Canadian Supreme Court also called this the "responsible communication" defense, for the specific purposes of bypassing questions of who constitutes a "journalist").

Ever since New York Times v. Sullivan (1964), when the Supreme Court constitutionalized defamation law, the United States has struck the balance between public debate and legitimate reputational interests of public figures more heavily in favor of public debate than in any other country.  Under the "actual malice" standard, a public figure cannot recover damages for a defamatory falsehood relating to his official conduct unless he/she can prove that the statement was published with knowledge that it was false or reckless disregard of whether it was false.  In strong contrast, UK/Canadian law, before these recent decisions, put the burden on journalists to prove that published statements were true or that they were matters of "fair comment."  With the emergence of the "responsible journalism" defense, UK/Canadian law now provides an alternative approach to defamation law that narrows the difference between the United States and these countries.  The additional breathing room this change created in Canada enabled newspapers to print stories on Ford they might well not have printed before, according to The Walrus.

The story chronicles the "decades-long hard work by a group of lawyers who felt that up until then Canadian libel law had been more intent on protecting reputations than on fostering debate." UPDATE:  The Court's formal statement of the elements of the "responsible journalism" defense is reflected in this list:

The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:

A.   The publication is on a matter of public interest, and

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.

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