Is responsible communication a journalism defence?

  • November 16, 2015
  • Hilary Young

In 2009, the Supreme Court in Grant v Torstar CorpFootnote1 created a new defamation defence with the potential to be a game changer. It brought fault into a tort that was largely one of strict liability. Whereas before plaintiffs had to prove that factual statements were true to have a defence (unless a privilege applied), now they essentially just have to prove that they took reasonable steps to ensure accuracy before publishing. Even false and defamatory communications are protected if they are on a matter of public interest and if they were communicated responsibly.

Although this new defence represents a significant change in the law, Grant creates some ambiguity around the question of its scope. Is it a journalism defence, understood broadly to include new media communicators such as bloggers? Or is it literally available to “anyone… in any medium” as Chief Justice McLachlin at one point states in Grant? Depending on how lower courts answer this question, Grant’s speech-friendly defence may be more or less influential.

The Chief Justice explicitly states in Grant that “responsible communication” is not a journalism defence (as its UK predecessor, the Reynolds defence, originally was) but is rather available to “anyone… in any medium.” Yet other parts of the decision suggest otherwise. Responsible journalism is referred to as the “essence of the defence” and whether communication is responsible is judged according to a number of factors, many of which reflect journalistic practices. For example, whether the plaintiff’s side of the story was sought and accurately reported is one of the criteria relevant to responsible communication. It makes little sense to apply that criterion to non-journalistic communications, suggesting the court had the media in mind in creating responsible communication. Further, Grant talks about the importance of free speech for the press. And finally, the defence emerged from a perceived gap in the protection offered by qualified privilege to media defendants. Although Grant is clear that responsible communication is not a subset of qualified privilege, the case nevertheless reflects a concern that the media in particular need a defence such as this.

The ambiguity in Grant is reflected in decisions by lower courts applying the responsible communication defence. In Foulidis v Baker, the Ontario Superior Court refused to apply the defence because:

“This case does not involve either traditional media or new media dissemination of information. It involves communication which is almost antiquated in nature: a letter, delivered by hand.”Footnote2

Foulidis v Baker is not unique in understanding Grant to apply only to media (see e.g. Rubin v Ross, 2010 SKQB 249). Yet there are other cases in which the scope of the defence has been – at least implicitly – interpreted broadly (see e.g. Hunter v Chandler, 2010 BCSC 729; Casses v Backer, 2012 BCSC 17).

Because of the ambiguity created in Grant, both arguments (that responsible communication is or is not a media defence) have some merit. I nevertheless conclude that Grant is best understood broadly as defence available to any defendant – not just to journalists, and not just to those who publish to the world at large. Space constraints prevent me from setting out my reasons in full, but they relate largely to the Supreme Court’s explicit rejection of a responsible journalism defence, its declaration that the defence is available to “anyone… in any medium,” and the lack of justification for protecting journalists differently than others.

If I am right, though, the enumerated criteria for assessing whether communication is responsible are a problem. They include:

  • 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; and
  • whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”).

 These criteria are not a checklist – they are just factors to consider. But courts have tended to treat them like a checklist anyway (there is scholarship on this with regard to the UK’s Reynolds defence and I have argued that the same is true following Grant). At best, the list sets judges off in the wrong direction, rather than simply asking them to consider whether publication was responsible in the circumstances. At worst, Grant technically makes the responsible communication defence available to non-journalists while rarely letting them succeed, since most of us do not conduct journalistic due diligence before we speak or write. Based on an analysis of the first five years of case law applying the defence, I found that in only three of eighteen cases was it successful. Those three all involved journalism.

What is to be done? First, we need the courts (ideally the Supreme Court) to clarify the scope of the responsible communication defence. If it is a journalism defence, non-journalists should at least be told not bother pleading it. If, as I think is more likely, the defence is available to anyone, lower courts should apply the defence rather than rejecting it because the communication is not journalistic. Further, the journalistic criteria for assessing responsible communication should be jettisoned. I have suggested in my article that they should be replaced by a test of reasonableness, which is what I think responsible communication actually means.

Hilary Young is an assistant professor in the Faculty of Law at the University of New Brunswick

For more details, see my book chapter, Anyone… in Any Medium’?: The Scope of Canada’s Responsible Communication Defence forthcoming in a book by Cambridge University Press. In the meantime, it is available on SSRN at: http://ssrn.com/abstract=2420103. I welcome any comments on this post or on the article, and I can be reached at hyoung@unb.ca.

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