Supreme Court ruling broadens libel defence for publishers and non-journalists

The Supreme Court of Canada has made rulings ordering two new trials that considerably loosens up libel constraints on publications. In two cases to which Magazines Canada was a party, the court accepted that "responsible communication" could be a legitimate defence in a libel action. Like many other defences, it rests largely on furtherance of the public interest and the judges set out seven criteria for judging what is "responsible", including the seriousness of the allegations and the reliability of sources.

The two cases were Grant vs. Torstar Corp. and  Cusson vs. Ottawa Citizen. In both, a new trial was ordered (during which the new defence can now be argued).

In the Cusson case, the Citizen was sued by an Ontario police officer who felt that he had been libelled by an article that suggested he had misrepresented himself as a trained dog handler in taking part in rescue operations at Ground Zero in the aftermath of 9/11. The paper lost the case when the jury decided not all of the fact were proven. It was upheld at the Court of Appeal. Part of the reason was that "responsible communication" had not been used as a defence at the original trial, even though it had not been recognized as a distinct defence by Canadian courts.

In the Grant case, a developer brought a libel action against the Star for a story that quoted neighbours' statements that Grant was using his political relationship with the Mike Harris government to secure approval for a new golf course.  A jury awarded damages. The court of appeal ordered a new trial, saying that the "responsible communication" defence had not been communicated to the jury. Grant appealed to reinstate the verdict and the SCC dismissed the appeal.

The decisions together were  a vindication of not only the Ottawa Citizen and Torstar, but other media who supported them in arguing that the archaic libel and defamation laws needed to be reformed. In effect, it opens up the possibility of publishing stories in which best efforts have been made to seek the truth, in the public interest, without being able to prove the truth of every statement.

Both cases hinged on being thwarted in being able to put forward the defence of "responsible communication". In both cases, the SCC ordered new trials, thereby giving defendants the chance to use the defence and justify their journalism as fair and balanced and in the public interest.

Of further interest is that, while the decision came as the result of a traditional libel action against a traditional mainstream publication, the court found that the "responsible communication" defence applies to anyone publishing matters of public interest in any medium -- in other words bloggers and non-journalists.

Read the Globe and Mail report on the two cases.