(Jan. 13, 2010) In late December 2009, the Supreme Court of Canada issued two decisions that widen the defenses available to communicators in defamation cases that are based upon material published on matters of public importance, by establishing a new defense of “responsible communication.” The decisions apply not only to journalists, but also to bloggers who publish material on the Internet and even to persons who Twitter. The two decisions have been hailed by leading Canadian newspapers and broadcasters as a significant step in extending the right to free expression in Canada. (See, for example, Glen McGregor, Supreme Court Establishes New Libel Defence, THE OTTAWA CITIZEN, Dec. 22, 2009, available at http://www.ottawacitizen.com/news/Supreme+Court+establishes+libel+defence/2
368569/story.html, the Canadian Broadcasting Corporation, New Libel Defence Allowed: Supreme Court, CBC News, Dec. 22, 2009, available at http://www.cbc.ca/canada/ottawa/story/2009/12/22/supreme-court-libel-respon
The Supreme Court decisions establish that trial judges are to determine whether a matter is in the public interest and, in the event of a jury trial, that the jury must determine whether the communicator acted responsibly by weighing eight different factors. In trials before a judge sitting without a jury, it will be the responsibility of the judge to weigh the established criteria for determining whether the communicator's actions were responsible. (Grant v. Torstar Corp.  S.C.C. 6, http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html, Quon v. Cusson, 2009 S.C.C. 62, http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html (both last visited Jan. 5, 2010).)
The cases involved appeals against awards made in favor of a real estate developer alleged to have been able to obtain approval for projects through political connections and a policeman who was supposed to have misrepresented his qualifications when he went to work at the World Trade Center site in the aftermath of September 11, 2001. In reviewing the awards, the Supreme Court first noted that while the Canadian Charter of Rights and Freedoms guarantees the right of freedom of expression (Constitution Act 1982, s. 2(b), being Part B to the Canada Act, 1982, ch. 11 (U.K.), http://laws.justice.gc.ca/en/charter/(last visited Jan. 5, 2010)), this right must be balanced against the need to protect personal reputations through the common law on defamation. In the cases under consideration, the Supreme Court looked at the laws of other countries, such as the United Kingdom and Australia, and found that the extant Canadian law had a more chilling effect on freedom of expression by generally requiring journalists to prove that their allegations were true. The ruling held that the focus should instead be on what the communicator did to ensure that the allegations were true. The Court established a fairly broad test for determining what is in the public interest, but noted that not all information about the private lives of individuals, even of public figures, falls into this category. (Grant v. Torstar Corp. & Quon v. Cusson, supra.)
To determine whether a defamatory communication was responsibly made, the jury or judge sitting alone must look at: 1) the seriousness of the allegation; 2) the importance of the story; 3) the urgency of publication of the communication 4) the reliability of the sources quoted; 5) whether the plaintiff's side of the story was sought and fairly reported; 6) whether the inclusion was justifiable; 7) whether a repeated communication was reported merely to show that it had been expressed or whether it was reported as evidence of the truth; and 8) other relevant circumstances. (Grant v. Torstar Corp., supra.)
The Supreme Court's decisions in the two cases were nearly unanimous, with only one judge disagreeing with the majority by suggesting that judges, instead of juries, should determine both what is in the public interest and what is reasonable in cases tried before a judge and jury.