Grant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media

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~ On December 22, 2009 the Supreme Court of Canada has released a very significant decision which affects all media news reporting companies and bloggers in Canada: "Journalists and other media, including bloggers, will be protected from lawsuits if they diligently try to verify information on matters that are in the public interest."















"Freedom of expression is guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. It is essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization."

>>> In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).

Importantly, the Supreme Court of Canada discussed and considered at some length ‘new media’ and the ability for ‘instant’ and easy publishing on blogs or webpage’s by ‘public interest’ groups. Thus, this Defence does not just apply to newspapers, but to bloggers, special interest and social networking groups:

[T]he 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 … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]

[Emphasis added]

Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:

• the seriousness of the allegation;
• the public importance of the matter;
• the urgency of the matter;
• the status and reliability of the source;
• whether the plaintiff’s side of the story was sought and accurately reported;
• whether the inclusion of the defamatory statement was justifiable;
• whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and
• any other relevant circumstances

In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:

[M]any 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. [Grant, at para. 97]

[Emphasis added]

This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.

The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,

Blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]

[Emphasis added]

Even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.

Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:

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. [Grant, at para. 97]

[Emphasis added]

Even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.

In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.

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Source: Defamation Law Blog
--------------/Defamation news and legal analysis with a Canadian focus/


• What media has to say?-
thestar.com: Supreme Court backs press in major libel ruling,
CBC: New Libel Defence Allowed: Supreme Court,
The Canadian National Newspaper Exopolitics Headlines:
Canada’s Supreme Court establishes new libel defence.


"These rulings have caused a fundamental change in Canada’s defamation law. While journalists, bloggers and others do not have free reign to impugn the reputations of others, the notions of free speech and freedom of expression have been broadened to ensure a more vigorous debate of political and other issues that are clearly important to society." Arthur Weinreb

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-~ For additional information click HERE.


>>> Reference posts:
- Ontario Libel and Slander Act R.S.O. 1990, CHAPTER L.12,
- Constitutional Law: 'Freedom of Expression in Canada',
- Law Tips for Bloggers (Part I) /Burden of Proof in a Civil Lawsuit/,
- Law Tips for Bloggers (Part II) /Defamation Law/ &
- Law Tips for Bloggers (Part III) /SLAPP Suits/.
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