A recent Ontario Court of Appeal decision is being hailed as one more significant step in expanding Canadian free speech rights.
The Nov. 28 decision in Grant vs. Torstar recognizes what is known as the “responsible journalism” defence in libel cases. The defence is a legal innovation that has been described as revolutionary in terms of how it allows journalists to report in the public interest.
The responsible journalism defence will be aired before the Supreme Court of Canada in February and it’s possible the top court will reject it. But legal experts say the Grant vs. Torstar decision suggests the courts are moving in the direction of greater freedom of expression.
One of the oddities about the common law that governs defamation in Canada is that the courts assume that comments that hurt an individual’s reputation are false; it is up to the person who made the comments to prove they are true.
But proving that a controversial news article is true isn’t always easy, Burnett notes.
“We all know there’s times where the literal proof or the strict proof of something you’ve said can be elusive because a witness is either out of jurisdiction or has died or backpedalled,” he told The Tyee.
Canadian libel law has traditionally not offered what you might call a “due diligence” defence. If an allegation contains incorrect information, it doesn’t matter how much effort a defendant put into checking the facts before publishing.
“You might do an investigative journalism piece and you could research the piece to death for a year but you may have some bad information in there and how careful you were and how much diligence you put into it … really counts for nothing,” Burnett said.
That’s where the “responsible journalism” defence comes in.
The defence got its start in Britain, where the House of Lords ruled in 2001 that journalists should not be penalized for performing their jobs in good faith.