Q: Is Jeffrey Dvorkin’s analysis of the new defamation-law scene the product of expired eggnog? His piece entitled “Libel law reform: Be careful what you wish for” warns that the recent Supreme Court decision is “no early Christmas present” for Canadian media companies, and since that is exactly how I characterized it, I feel entitled to object to his contrarian Hail Mary.
My guess is that media law departments are now advising chief editors to restrain their journalists from doing more aggressive reporting unless they can prove that every effort (including a demonstrable commitment to editorial resources) has been made to get all sides of the story. …In any future libel action, the onus will now be [on] the media organizations to prove that every reasonable effort has been made to contextualize a story.
But that’s true only if they intend to take advantage of the all-new defence they have just been handed. The Court didn’t remove or diminish any of the existing libel defences that might already have motivated news investigations, including truth, fair comment, and privilege. We don’t know just how practically available the new defence will turn out to be, but at worst we are left where we started: anything one could publish in confidence before the new ruling can still be published in confidence now. Sure, the “early Christmas present” may be nothing more than the equivalent of ugly plaid socks, but it does come free and clear, with no strings or liens or novel obligations hiding in the bottom of the box.