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Canada's highest court ruled Tuesday in two decisions that publishers can escape liability if they can show that they tried to verify the facts and the published material is a matter of public interest. ((CBC))

The Supreme Court of Canada has opened the door for journalists to use the defence of "responsible communication" against libel suits.

Canada's highest court ruled Tuesday in two decisions that publishers can escape liability if they can show that they tried to verify the facts and the published material is a matter of public interest.  

The decision was prompted by appeals from two Ontario newspapers — the Ottawa Citizen and the Toronto Star. On Tuesday, the Supreme Court ordered new trials for both of them in light of the new defence available to them.

Journalists across Canada, as well as bloggers, can now use the defence of "responsible communication on matters of public interest" as a defence against libel.

However, in order for them to do so, a judge must confirm to the jury that the published material relates to a matter of public interest.

The judge may also rule out the use of the "responsible communication" defence if the case does not meet the criteria outlined in a checklist issued as part of the rulings.

Existing law may have had 'chilling effect'

Excerpt from Supreme Court ruling

The defence of public interest responsible communication 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:

  • The seriousness of the allegation;
  • The public importance of the matter;
  • The urgency of the matter;
  • The status and reliability of the source;
  • Whether the plaintiff's side of the story was sought and accurately reported;
  • Whether the inclusion of the defamatory statement was justifiable;
  • Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth ("reportage"); and
  • Any other relevant circumstances.

The Supreme Court said it examined laws in other countries with similar legal systems, such as the United Kingdom and Australia. It found that Canadian law was strict by comparison and did not give enough weight to the value of free expression.

"This, in turn, may have a chilling effect on what is published," said the text of one of the rulings. "Information that is reliable and in the public's interest to know may never see the light of day."

The law must also take into account possible damage to the plaintiff's reputation. 

"But this does not preclude consideration of whether the defendant acted responsibly, nor of the social value to a free society of debate on matters of public interest," the ruling said.

The Ottawa Citizen and the Toronto Star launched appeals after the Ontario Court of Appeal first outlined rules two years ago that would allow the use of "responsible journalism" as a defence.

The Supreme Court chose to broaden that to "responsible communication" in order to include non-journalists, especially online, who are increasingly communicating matters of public interest.

The Citizen was appealing a lower court ruling that it must pay $100,000 in damages to Ontario Provincial Police Const. Danno Cusson about a series of stories it published shortly after the Sept. 11, 2001, attacks.

Following the attacks, Cusson went to New York City with his dog of his own initiative to help with search and rescue efforts. The Citizen articles said Cusson misled New York police into thinking he was an RCMP officer and that his German shepherd had formal training.

Cusson sued and the court ruled that 12 of 29 facts that Cusson complained about had libelled him.

Changes focus of lawsuit

Cusson's lawyer, Ronald Caza, said Tuesday that his client will have to review the Supreme Court ruling before deciding if he wants to go back to trial.

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Ronald Caza, lawyer for Danno Cusson, said the ruling will change the focus of court cases from the truth of the facts to the behaviour of the journalist. ((CBC))

When asked if the decision makes it tougher for him to make his case, Caza responded, "What it does is it makes it different."

He added that the ruling shifts the focus from whether the allegations were true to what the journalist did to ensure facts were true. He suggested that if a journalist is alerted ahead of publication that his or her facts are untrue, he or she would have a hard time using the new defence.

Richard Dearden, lawyer for the Ottawa Citizen, said the ruling is a win for all types of journalists.

"This is a defence that you as journalists never had before and also bloggers or anybody using Twitter — whatever."

The Star was appealing a $1.5-million libel award it had been ordered to pay in 2007 over a 2001 article about a case involving businessman Peter Grant's plans to expand his northern Ontario golf course. The article quoted a local resident's concerns that the application was a "done deal" because of Grant's friendship with then Premier Mike Harris.

The Citizen and the Star argued before the Supreme Court that they engaged in "responsible journalism," as defined by the Ontario Court of Appeal in 2007.

The court laid out rules for that defence, based on precedents in other countries, after it upheld the verdict and damage award against the Citizen in 2007.

Groups representing the media applauded Tuesday's Supreme Court ruling.

"Today's ruling helps journalists do their jobs — bringing to light information that's in the public interest with a better shield against a libel suit levied to block a controversial story," Mary Agnes Welch, president of the Canadian Association of Journalists, said in a statement.

Cal Johnstone, president of RTNDA Canada, which represents radio and television news directors, called the rulings an "important victory for freedom of the press."

With files from The Canadian Press