Canadian journalists may just breathe a little easier now. A November 2007 major ruling of the Ontario Court of Appeal broke new ground in the area of defamation law when it comes to the news media in Canada.

In essence, the Ontario court decision in Cusson v. Ottawa Citizen gives the media another line of defence when it comes to defamation lawsuits and provides more freedom for the media to publish stories that they would be otherwise hesitant to publicize. The court coined what it called a “new and distinct” term — the ‘public interest responsible journalism defence.’

Canada’s age-old judicial approach to defamation suits has been to mainly look out for the reputation of the individual versus public interest debate on the issues. The new ruling is in line with those of other Commonwealth countries such as England and New Zealand — a clear support for the uninhibited exchange of information in the public’s interest.

In particular, the court’s decision follows the recent footsteps of the British House of Lords in England, where the public interest responsible journalism defence was given life in the 2007 case of Jameel v. Wall Street Journal Europe.

The Ontario court decision makes the public interest responsible journalism defence a new addition to the group of defamation defences in Canada, which includes truth, fair comment, qualified privilege and consent.

Justice Robert Sharpe of the appeal court wrote that, “The defence is plainly intended to shift the law of defamation away from its rigid reputation-protection stance to freer and more open discussion on matters of public interest and should be interpreted accordingly.”

For example, if a media outlet publishes a story and makes every reasonable effort to ensure the accuracy and truth of its contents, the public interest responsible journalism defence would protect them in the face of a libel lawsuit, even if some of the facts of the story were incorrect.

Prior to the appeal court ruling, the qualified privilege defence was the only real plausible defence for media outlets in defamation cases. Under qualified privilege, the media in Canada is permitted to publish defamatory material within the overall framework of reasonable and accurate news of proceedings in places like provincial legislatures, Parliament, and the courts. Conversely, truth and fair comment were the only other applicable defences in all other areas of news coverage.

The reaction of the Canadian news media to the new ruling was very receptive and amenable to the legal change. Daniel Henry, of the Canadian Broadcasting Corporation (CBC), said: “There is every reason to believe that this new decision will be considered carefully and followed in Canada’s other common law provinces.”

However, Henry also noted that “if a media organization publishes information on any matter of public interest, it can succeed [in a defamation defense claim] even if the information turns out to be defamatory and untrue, if it can convince the court, on a balance of probabilities, that the steps it took in gathering and publishing were responsible and fair.”

In all, there still remains a measured burden of responsibility on journalists and media outlets to ensure that the collection and dissemination of news information is done fairly and within reasonable journalistic practices and standards.

The decision can be read here: http://www.ontariocourts.on.ca/decisions/2007/november/2007ONCA0771en.pdf

First published in 2007 for the Public Legal Education Association (PLEA) of Saskatchewan.