Supreme Court Sharpens Libel Focus
December 22nd, 2009
Honest journalists and publishers will welcome today’s Supreme Court of Canada ruling on libel, based as it is on our profession’s touchstone principles of responsible journalism.
Conversely, the Court’s sharper focus on the steps taken by journalists to verify the information presented in their stories spells trouble for writers who breach the profession’s basic rules – and their employers’ own standards of policy and practice.
Leading Canadian news companies joined forces to advocate the “responsible journalism” defence in the Supreme Court’s consideration of two cases, one involving the Toronto Star, another from the Ottawa Citizen (which is published by a corporate defendant in Kent vs. Martin, Canwest Publishing et al).
The defence would protect publications, and websites such as this one, from irresponsible lawsuits if the publisher establishes that reasonable measures were taken to check the truth of the content of the article at issue.
Chief Justice Beverly McLachlin, writing for a 9-0 majority, held that the defence would work in the media outlet’s favour “if it can establish that it acted responsibly in attempting to verify the information in a matter of public interest.”
Equally, the ruling’s eight tests of “responsible communication” provide victims of malicious defamation with new measures to identify irresponsible writing and publishing. Among these, with regard to whether the Plaintiff’s side of the story was sought and accurately reported, the Court states:
“In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond… Failure to do so also heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial.”
Regarding other tests, the Court states:
“The logic of proportionality dictates that the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of the potential effects on the person defamed.”
“If a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity without compromising the story’s timeliness, this factor will weigh in the plaintiff’s favour.”
“…the fact that the defendant’s source had an axe to grind does not necessarily deprive the defendant of protection, provided other reasonable steps were taken… On the other hand, it is not difficult to see how publishing slurs from unidentified “sources” could, depending on the circumstances, be irresponsible.”
Overall, the Court’s ruling makes unpleasant reading for the authors and publishers of “drive-by smears”, to borrow the parlance of David Asper, chairman of the National Post, who in past has complained bitterly when on the receiving rather than the giving end of the shabby practice.
Defamed “targets” now have added reason to cite evidence showing that writers, editors and publishers have:
- failed to verify information
- failed to give the subject of a story an opportunity to comment prior to publication
- sought and/or received information only from a select group of political friends
- sought and/or received information only from the subject’s political adversaries
- failed to seek balancing information from the subject’s supporters
- contradicted accurate information published previously by the same newspaper, resulting in a false and defamatory account
- refused to publish corrections of factual errors as per industry standard and the media group’s own standards of practice
- refused the subject’s right of reply by rejecting publication of the subject’s rebuttal article
- failed to respond to written requests to address these abuses prior to the commencement of legal proceedings…
…among other tawdry breaches of sound journalistic practice. For further reference, please see Canwest Witnesses Go Under Oath, below, posted Sept. 9 2009.
Coming soon: comparative studies in defamatory libel.
Coming now: our best wishes for a wonderful holiday season, and the happiest of New Years in 2010!