An irresponsibly quick reaction to “responsible communication”

Don’t expect much from your journalism elite today, citizens: we’ll be busy celebrating our early Christmas gift from the Supreme Court of Canada. It was widely anticipated that the SCC would follow other Commonwealth jurisdictions in creating a new “responsible journalism” defence to defamation. It’s one that encourages contextual analysis of defamatory words, rather than casuistic focus on individual terms; creates less of a “strict liability” environment for journalists; and allows for the repetition of defamatory statements if the mere fact that those statements were made is itself news and the statements were properly attributed and set in context.

None of that is surprising and all of it is quite desirable. But before I get too far into this magnum of Krug, I’ll tell you what else leaps out at me in the new Magna Carta:

1. Even given that the Court was going to mimic other Commonwealth countries, it still had an array of options in defining “public interest” for the purposes of the new defence. The definition is chose is a broad one, influenced by past Canadian jurisprudence on the “fair comment” defence. Here’s the relevant lingo from the headnote [emphasis mine]:

To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.  Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.

2. The Court has not chosen, or not yet chosen, to confine the availability of the defence to journalists working for old media in the traditional manner. It consciously did the opposite:

In arguments before us, the defence was referred to as the responsible journalism test.  This has the value of capturing the essence of the defence in succinct style.  However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists.  These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.

The definition of “responsibility” that publishers are asked to observe is essentially a description of good journalistic practice, so the defence will be available to non-journalists to precisely the degree in which they’re really doing journalism and doing it well. And working journalists will have an extra layer of protection insofar as their work is documented, checked by editors, and discussed with the new court-created definition of “responsibility” explicitly in mind. Still, the new defence is, quite properly, there for everybody. You won’t need to show some sort of professional license to appeal to it.

3. When the journos are finished high-fiving each other, they’ll probably start to feel slightly less upbeat pretty soon. It’s rarely observed in the debate over defamation reform that the problem of “libel chill” really contains two distinguishable component issues: freedom of expression, and uncertainty about what can be published and what can’t. The creation of a “responsible communication” defence will get more journalists (and non-journalists doing journalism) off the hook in the end, and should thus discourage some vexatious or wholly adventurous prosecutions and notices. It is less clear that the creation of a complex test for diligence in reporting, one that sets out a list of seven overlapping questions that isn’t even exhaustive, does anything to promote certainty.

Publishers can get away with more than they did before, but how much more? There’s no caselaw yet: the “responsible communication” defence is a newborn baby. Will the cost of defamation insurance decrease at all, once media outlets adjust their practices to take advantage of the more obvious gains made before the SCC today? Defamation certainly just became a much more complicated topic in the law: the legal costs of each individual suit are likely to increase.

So this decision isn’t exactly a Prague Spring of “libel chill”. If we wanted to get rid of “libel chill” we could adopt a rule tomorrow that “All articles containing the letter ‘q’, but only those articles, are defamatory.” That would make editorial judgments and defamation trials easy, and eliminate all “chill”—i.e., the existence of doubt about whether some subject can be approached and aired without risk. Some degree of “chill”, at some margin of verifiability, is the price we pay for the existence of sensible defamation law that honours freedom.




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An irresponsibly quick reaction to “responsible communication”

  1. "all of it is quite desirable"

    Wow. I thought you were one of the good ones.

    "one to which considerable public notoriety or controversy has attached" — luckily, large media organizations have the resources to generate such notoriety and controversy themselves, lowering their liability even further.

    The individual's right to his good reputation is snuffed in favour of someone's definition of "public interest."

    p.s. Haven't read the decision yet but I will.

    • The SCC's broad definition of "public interest" wasn't one of the things I described as "desirable". Are you going to read the decision backwards too?

  2. "Right to a good reputation"? I think you mean "preference for a good reputation," as defined in S. 22b of the Charter of Peeves & Preferences.

    • Actually, the judgment at hand did recognize one's reputation as worthy of legal protection, and something that (to some extent) competes with freedom of expression – all without calling it a bona fide right, though.

  3. (That said, I'm actually opposed tout court to the existence of defamation law, so, no, I'm not one of the "good ones". I'm a dangerous anarchist.)

    • I'm actually opposed tout court to the existence of defamation law,

      So if you ever libel me then you'd be willing to report for an asskicking? Because that's what you'd get in the absence of a civilized forum to address the grievance.

      • That presupposes that courtrooms are more "civilized" than a free press. But I do love an old-fashioned asskicking and I know just what boots I'd bring.

        • I won't say that courtrooms are more civilized than a free press, but they are accessible to everyone whereas a free press is not.

          • This has been Robert McClelland, reporting from the alternate universe where a Blogspot account costs more than thirty seconds in the office of a defamation attorney. Coming up: the weather.

          • What non-legal redress does one have against a newspaper, esp. a large one? Start your own competing newspaper?

          • What can one do against a big airline that bent you over and forced you to accept your damaged package except perhaps write a song about it?

          • Wow, you've convinced me! It's far better to make an entertaining piece of drama, hope and pray for media attention (like, y'know, big newspapers) to affect public opinion, then further hope that hope or fear that the companies will even notice, and then that they take pity on your and give you some sort of redress out of benevolence.

            Great idea! A fact based, reasoned, if expensive, legal resolution is hardly necesary at all in commercial disputes. I couldn't agree more. We should all use youtube instead.

          • I believe most major newspapers have ombudsmen who are not beholden to the publishers.

          • You feel the ability to start a blog is an appropriate redress against damaging statements made in the mainstream media.

            You are lying or I pity you.

          • So, let me get this straight…If I defame you, you won't sue me? Or is this one of those "conservative" principles? One held only when one doesn't need it?

          • It's one of those "conservative" principles in the sense that as soon as a "conservative" or anyone else says "I don't believe anyone should have access to entitlement X", someone will happen along to scream "Then you can never personally claim X!", and think himself clever for doing so.

          • I didn't think I was being clever. I was extrapolating from the plainest interpretation of what you wrote: "I'm actually opposed tout court to the existence of defamation law." Anyway, legal recourse in the face of defamation isn't an entitlement. It's basic justice.

      • Journalists generally don't like accountability.

        • No no no, journalists LOVE accountability…for everybody else.

          • This judgement still places a fairly hefty onus on journalists to prove they covered the bases adequately before publishing. I'm guessing those who do their jobs well (i.e., fact-check, ensure an opportunity for response by named parties, etc….) will be very happy with this. It manages to protect them in the course of doing their jobs, while leaving less responsible types exposed.

  4. "Don't expect much from your journalism elite today, citizens: we'll be busy celebrating our early Christmas gift from the Supreme Court of Canada. "

    "We?"

    • Don't worry, it's not a real elite anyway.

      • No Senate seat for you!

  5. I am curious to know how often our Supreme Court looks abroad to decide cases here. I don't understand what laws US, South Africa, Australia or Britain have has to do with what we do here. It makes me twitchy when justices look around the world to find excuses to rule/decide in certain way here.

    • We adopted almost everything wholesale from England only a short time ago, in historical terms. While obviously it shouldn't dictate result in domestic matters, it can be instructive to take a close look at how similar jurisdictions handle the matter. I couldn't give you numbers about how often it happens offhand, but its hardly uncommon, esp. when a matter is novel in Canada but has come up in other areas.

    • "It makes me twitchy when justices look around the world to find excuses to rule/decide in certain way here. "

      That happens in every country. Even the US.

      • Most of Canada (the exception being Quebec) has a common law system. Not all of our law is codified through statute. This system is based on the idea of precedent. Lower courts are bound by the decisions of higher courts in this country or they may be influenced. For example, the BC Supreme Court is bound by the Supreme Court of Canada and by the BC Court of Appeal. It is not bound by the Ontario Court of Appeal but it may be influenced by decisions from that court, particlarly if there is no BC case that is on point. When advocating a client's case, legal counsel often use cases from other jurisdictions (usually starting with cases from other provinces within Canada, but sometimes from other common law countries) to influence the court's thinking on an issue. The court may or may not adopt the reasoning from such decisions.

  6. In the field in which I work (financial regulation), I am constantly disappointed and astounded by how often journalists get things wrong from a factual perspective when they write stories about that topic. The Globe ROB is a shining example. Many of the articles written are downright misleading, they're so bad. So while I have a lot of sympathy for journalists, I find that a lot of them are lazy and imprecise when they go to describe certain facts or situations in their articles. I guess this decision from the SCC gives journalists a sort of "due diligence" defence, which is probably fine. But I wish more journalists were more diligent and conscientious when they go to research and report on things.

    • Hear hear! That and the need for sensationalism are to me the biggest problems in journalism today (far surpassing ideological bias). Just a few days ago MacLeans itself published an article on anti-abortion/anti-women groups on campus. it erroneously stated that a specific anti-abortion group had won the legal right to start a campus organization, when nothing of the sort had occurred.

      I doubt this particular case affects that problem, however, seeing as its about reporting on unfounded accusations the public had about a developer. I suspect fact checking as poor as you state in a defamation case would have adverse effects for a reporter.

      • I think just as insidious as outright sensationalism is its subtler cousin, the perceived need for an "angle". What I mean by that is the fact that editors and reporters often insist that any story, to be "readable" and "accessible", has to have an "angle" or "hook", some jumping-off point that will grab the attention of the reader. And it's in the quest for that "hook" or "angle" that accuracy and particularly balance can quickly get thrown out the window. A classic, typical example of this sort of thing is the newspaper story where it very quickly is apparent who the "hero" is and who the "villain" is. The entire story is presented through that lens. Nuance and complexity are out the window.

  7. The particular case of Grant v. Toronto Star (et al) was interesting in that the crux of the original decision seemed to come down to Schiller including a quote from an area resident/cottager about political manipulation. It wasn't even a case of the newspaper interpreting the situation through a column, editorial, or statement of 'fact'.

  8. A question: If this ruling applies to reporters, bloggers, those who Twitter and presumably all of us, what bleed through could this have for government spokespeople (partisan and departmental), individuals and organizations (corporate and non-governmental)?

    If in their public statement they now feel encouraged to offer contextual analysis of defamatory words, rather than casuistic focus on individual terms; creating less of a “strict liability” environment for EVERYONE; and allows for the repetition of defamatory statements if the mere fact that those statements were made is itself news (or deemed by the individual to be news/interesting/in some definition of the public interest) and the statements are properly attributed and set in context?

    Is it acceptable to apply this direction to the entities named above?

    • Sure, if they can meet the diligence-in-reporting test (so, 999 times out of a thousand, it won't apply at all to the institutions you're talking about).

      • So there is no Goose, Gander action going on here? Some would applaud, some would wonder why the double standard.

          • Do we want our public (governmental and non) institutions and spokespeople empowered to repeat defamatory comments if given context or backed by a belief they are "important" enough? And would they be denied the same defence if it came to a legal challenge? The question that bugs me is an established and ethical journalist who is accountable to a mainstream outlet is no longer different from a blogger or twitterer, then when does the line stop blurring to individual and that line blur back into institutions and their voice? Anyway, more questions than answers.

          • But bloggers would still have to meet the standard, as I read the judgement (i.e., they would still need to demonstrate good journalistic practices behind the words they publish – should they be dragged into court.)

            I don't think it's that the journalist is accountable to a mainstream outlet, so much that mainstream outlets often have more routinized procedures and policies to ensure proper reporting practices (and cover their corporate arses!). But there's no reason why a sheerly independent amateur cannot follow the same practices.

          • I agree, it sounds to me much like a basic due diligence defence, as exists in various other areas of the law (e.g., securities law, environmental law). It's about following certain procedures (in this case, some basic fact-checking, making some effort to contact sources & verify, etc.). AND it's a very good idea (and emphatically in your enlightened self-interest) to create and maintain some record of what you've done, i.e., the paper trail. So that if/when your gluteus maximus gets dragged into court, you can demonstrate that you were duly diligent.

  9. I'd be interested to hear an analysis from a good, reasonably objective libel/defamation lawyer as to how this now compares to the situation in the US, which has conventionally been seen as a friendlier place for journalists in this regard. I'd always understood that in Canada and Britain, essentially the onus was on the defendant once defamation (e.g., a defamatory statement) had been established, and we only had a few select defences (e.g., truth, privilege, etc.). The US in contrast has a very vigorous "public figure/public interest" doctrine (the big case being NY Times vs. Sullivan), and I'd always understood that the big focus there tends to be on whether the journalist acted with malice or not (thus the title of the movie Absence of Malice).

  10. I would be fine with this, except that the so-called professional journalists have disgraced themselves over and over again by pushing their own agendas under the 'public interest' clause. The non-existent interest in Climategate by journalists when there was a lot of interest in it with the public and journalists' intense interest in Afghan detainees when there was virtually no public interest.

    The MSM have a lot of 'tools' at their disposal to create public interest in their own agenda or to dismiss it. I am glad that the SCOC did reference bloggers who I have a lot more respect for that the vast majority of the professional journalists out there.

  11. Journalists have become pawns of the political left, MSM ignores many stories and issues if the topic is outside of their political ethos. Is this ruling a victory perhaps but enacting SLAPP legislation would be a positive first step in ceasing Libel Chill.

    Climate Gate has shown the unwashed masses or the court of public opinion the level of corruption that has infested the journalism industry and it is apparent MSM has an agenda and it isn't reporting the news factually or am I wrong?.

    • Journalists are people, and that isn't a fault. Journalism can be good even if the pov of the writer is different than your own. It is true that many journalists can be faulted for being heavy handed, but this certainly doesn't apply to good journalism. It is meant to expand the debate on either side of the coin, not to emphasize one way or another.

      Secondly though,I believe the level of corruption in all industries (including journalism) should be examined, but I am not sure how you can say that "climate gate has shown" anything quantitatively. To me it only shows that some people doubt the reality of climate change, just as some doubted (and probably still doubt) the toxic effects of smoking.

      This disagreement is not bad, it is very natural. So, it seems, is corruption and political alliance. But in order to investigate the level of corruption in an organization, we need to trust another human to do the job unless we want to do it ourselves. In the end, the people we trust have just as much political bias as ourselves, and thus the corruption is perpetuated… Am I wrong?

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