2009 December 22

Cusson v. Quan, 2009 SCC 62, Grant v Torstar Corp., 2009 SCC 61

The Supreme Court of Canada, in companion decisions released the same day, created a new common law defence of “responsible communication on matters of public interest” and directed that these defamation claims brought against conventional newspaper defendants be re-tried. This new common law defence of responsible communication, which is to be assessed with reference to the broad thrust of the publication in question, will apply where:

1. The publication is on a matter of public interest (a question for the judge, being a mixed question of fact and law)
2. The publisher was diligent in trying to verify the allegation (question of fact for the jury), having regard to:
   1. The seriousness of the allegation;
   2. The public importance of the matter;
   3. The urgency of the matter;
   4. The status and reliability of the source;
   5. Whether the plaintiff’s side of the story was sought and accurately reported;
   6. Whether the inclusion of the defamatory statement was justifiable;
   7. Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”);
   8. Any other relevant circumstances.

The onus of proof rests on the defendant to establish this defence. A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly. An individual’s reasonable expectation of privacy must be respected in this determination.

The Supreme Court of Canada made it clear that this new defence is not limited to the traditional news media but has potential application to the new media, including bloggers and others publishing on the Internet. Consider the following extracts from the majority judgment of Chief Justice McLachlin in Grant v Torstar:

1. The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.
2. A second preliminary question is what the new defence should be called. 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. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”: Jameel, at para. 54.
3. A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.