The Ontario Bar Association (OBA) Young Lawyers Division has an interesting article by Karen Perron of Merovitz Potechin LLP discussing an event they held with Wendy Wagner of Gowling Lafleur Henderson LLP and Ron Caza of Heenan Blaikie LLP on the two recent SCC decisions in Quan v. Cusson and Grant v. Torstar,
After reviewing the decisions themselves, our speakers discussed the impact of the decisions on the daily practice of law in this area. Because a key component of the defence is proving that the journalist/writer was diligent in trying to verify their story, will this now invite a more formal exchange between the media and the subjects of the reports who are, arguably, the potential victims of defamation? Lawyers acting on the plaintiff side are now getting calls from their clients immediately after they are contacted by journalists. What is the best advice to provide to your client in this circumstance? How can you provide an opinion to your client on the merits of his or her case without first proceeding to discoveries to uncover the extent of the journalist’s due diligence? Of course, the counterargument is that responsible journalists should always take the necessary steps to verify their stories prior to reporting them in any case, including speaking to the subject of the report. Will this defence actually bring anything new to the manner in which good journalists function? However, will the responsible journalism defence now impact the public’s interest to receive news stories in a timely and effective manner? How long should a journalist wait to receive a plaintiff’s response in a world where news is a quickly perishable item?
Many other considerations also come into play. How will the defence evolve in light of the fact that the jury has been given the role of determining whether the publisher was diligent in trying to verify the allegations? Also, the defence has not been limited to the media. What effect will this have on bloggers and tweeters? These decisions also introduced the reportage defence, which is an exception to the repetition rule that otherwise holds that repeating a libel has the same legal consequences as originating it. How will the new reportage defence evolve? Will experts be required to testify on whether or not a journalist completed their due diligence? Will a standard of care emerge for journalists?
Good questions. We’ll have to watch the case law to find out.