New Defamation Defence Balances Charter Values

November 27, 2007

By Brian Babcock

Ontario’s Court of Appeal recently decided to recognize the English defence of “public interest responsible journalism” in a claim of defamation.

The case involved a series of articles in the Ottawa Citizen, which the Plaintiff argued were untrue and defamatory. The paper could not rely upon defences of truth and fair comment, which traditionally require proof of substantially all of the underlying facts, because it could not prove some of the facts.

At trial, the Plaintiff recovered significant damages because the judge, applying long standing principles going back a half century in Supreme Court of Canada decisions (which mainly predate the Charter of Rights and Freedoms), was not willing to recognize that a ‘qualified privilege’ existed protecting the paper when publishing a story of public interest.

Qualified privilege is a defence to a defamation claim even if the facts are unproven, or untrue, and despite damage to a Plaintiff’s reputation. A Plaintiff cannot recover for his damages if qualified privilege exists, unless malice is proven. This defence exists to protect communications where the communications involved are considered so important, and candid comments are essential, even at the risk that sometimes the truth is obscured.

Earlier cases had ruled that qualified privilege does not apply to general news stories published to the general public. This defence is mainly available for communications to a limited audience with a special interest in a subject (like a letter of reference, complaints to regulatory bodies, credit checks).It only applies in a very limited way to the media, protecting fair reports of certain public events (such as meetings of municipal councils), even if a speaker at those events might have committed slander.

The Court considered whether the traditional defence of qualified privilege should be further extended to cover news reports on matters of public interest generally. This would have resulted in a situation very similar to the American requirement that the Plaintiff show “actual malice”. This was the result the newspaper wanted.

However, even our Supreme Court judges are Canadians. They did not go that far. They, as often happens, looked towards our British roots and sought the middle ground.

As a result, the Court recognized a new defence of public interest responsible journalism, which it describes as different from qualified privilege. Because the new theory was not argued at trial, the Plaintiff in this case still won, but future cases may turn out differently.

The new defence strikes a balance between Charter values of freedom of the press and protection of reputation. It recognizes that proving every fact in a story may be impossible, and that a standard of reasonable and probable belief in the truth of the facts is more balanced.

If the article as a whole is in the public interest, the focus of the inquiry shifts to determining whether the defamatory statements were “part of the story”. The more serious the allegation, the more important it is that it should make a real contribution to the public interest element of the article. In making this determination, deference will be shown to editorial judgment. If both the publication as a whole and the defamatory statements were in the public interest, the question then becomes whether responsible journalism was practised in the gathering and publishing of the information. If so, not every fact needs to be proven.

So, media defendants may be required to show that they took reasonable steps in the circumstances to ensure that the story was fair and its contents were true and accurate. If they achieve that goal, they wil not pay damages even if some of the facts are unproven, or incorrect.

The exact boundaries of the new defence must be further defined, and an appeal to the Supreme Court is likely, but the following indica from one of the leading British cases are useful guidelines as to the hallmarks of proving responsible journalism:

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.