CBC News Editors' Blog

Posted by Daniel Henry, CBC Senior legal counsel

Last week, the Ontario Court of Appeal granted the media a new defamation defence, in addition to truth, fair comment, privilege and consent. It's called "public interest responsible journalism." This new defence promises to remove the “chill” from Canadian defamation law and significantly affect what we publish and when.

Now, in Ontario, when a media organization publishes defamatory public interest information that it honestly believes to be true, and the steps taken in gathering and publishing the information are responsible and fair, it can rest assured that the courts will support it, even if the facts turn out later to be untrue.

Justice Robert J. Sharpe, speaking on behalf of the court, explained the need for the new direction:

“...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."

"...On the other side of the scales, the Supreme Court of Canada has recognized and reaffirmed that the protection of reputation is also an important Charter-protected Canadian value.

"...A newspaper that has properly investigated the story and has every reason to believe it to be true still walks on thin ice. The fear or risk of being unable to prove the truth of controversial matters is bound to discourage the publication of information the public has a legitimate interest in hearing.”

He noted that while the defence is new to Canada, it is not new to the common law world.

In England, for example, the House of Lords has been developing this extension of the privilege defence since late 1999, beginning with a case called Reynolds versus Times Newspapers Limited and Others. The latest expression of the defence is its decision in Jameel versus Wall Street Journal Europe.

In Jameel, the House of Lords developed a three-part test for considering publication of defamatory information:

1. Was there a public interest in the publication of the article?

2. Was the inclusion of the defamatory statement justifiable?

3. If so, Were the steps taken to gather and publish the information responsible and fair?

In adopting and adapting this test for Ontario, Justice Sharpe said he was steering a middle course between the restrictive traditional Canadian common law of defamation and the alternative U.S. approach.

In the U.S., if a media organization publishes information about a public official or public figure, it can succeed in its defence even if the information turns out to be defamatory and untrue, unless the person suing proves that the journalists proceeded with “actual malice”: i.e. they knew, or ought to have known, that what they were publishing was false. There is no requirement there to have been “responsible” or “fair”, in the eyes of a judge or jury.

Under our new defence, if a media organization publishes information on any matter of public interest, it can succeed even if the information turns out to be defamatory and untrue, if it can convince the court, on a balance of probabilities, that the steps it took in gathering and publishing were “responsible and fair.”

There is every reason to believe that this new decision will be considered carefully and followed in Canada’s other common law provinces. In Quebec, under the Civil Code, media organizations can already succeed if they publish defamatory information that turns out to be untrue if the person suing cannot prove they were at fault, for not meeting the standards of the reasonable journalist.

Ultimately, it would be a short step for the Supreme Court of Canada to decide one day, given the charter’s equal guarantee of free expression to all Canadians, that in common law jurisdictions, a court should only award damages against a journalist exercising his or her right of free expression if the person suing can prove the journalist published defamatory false information and did not meet appropriate standards in the process of publication.

Courts acknowledge that free expression should be encouraged as the best way for society to arrive at truth. They differ on the test to be applied in these circumstances, and the burden of proof. In my view, as long as any doubt about a journalist’s responsibility is resolved against the journalist, free expression is discouraged and our collective search for truth is unnecessarily inhibited.

In any case, this decision is a step forward for free expression, and the search for truth. Truth is what the media want to publish. With the new defence, the law retains its incentive for media organizations to do just that.

The decision itself is available online in full in english, et en francais.

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