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.