Libel-law relief
by Jacob Ziegel
This commentary was first published in the National Post on January 5, 2010.
Canadian news media have rightly hailed two Supreme Court of Canada judgments released shortly before Christmas -- Grant against the Toronto Star and Quan vs. Cusson-- as giving Canadian news media much needed relief from Canada's draconian libel laws.
The Supreme Court's judgments are all the more important because, as recently as 1995, in the Church of Scientology case, the court had declined to follow even a restricted version of the U.S. Supreme Court's seminal decision in Sullivan against The New York Times. Decided in 1964, Sullivan protects U.S. media from libel suits in matters involving the public interest unless the offending article was written maliciously.
Credit for the Supreme Court of Canada's change of heart should also be given to Justice Sharpe of the Ontario Court of Appeal. As pro bono counsel for the Canadian Civil Liberties Association he had tried, unsuccessfully, to persuade the Supreme Court in the Church of Scientology hearing to adopt a due diligence defence in libel actions. What he wasn't able to accomplish off the bench, Justice Sharpe was happily able to consummate by writing the Court of Appeal's opinion in the Quan case -- a judgment that greatly influenced the Supreme Court in penning its own decisions in Quan and Grant.
LOOSE ENDS
Nevertheless, the Supreme Court judgments leave important questions unanswered. One is whether the defence they establish -- which has been termed the "responsible communication" defense -- will be limited to news media. Will authors of books and scholarly literature also be entitled to invoke it if sued for defamation? Will it protect private communications among news room staff? The answer in the first two cases should be yes, assuming the communications have a public interest component. The answer in the third case is more debatable since it may be argued that there is no public interest in privately exchanged messages. Nevertheless, the ratio of the Supreme Court judgments -- encouraging free dissemination of information and opinions -- should also apply in such cases since private communications often form the basis of major stories of public interest.
THE JURY'S ROLE
The Supreme Court also decided that juries should continue to decide whether the publisher of a defamatory statement has exercised due diligence in verifying the accuracy of the information alleged to be libellous. Justice Abella dissented on this issue and I agree with her. In Canada and other English-speaking jurisdictions, juries have traditionally not been bulwarks of free speech -- quite the contrary. Even in the new Charter-oriented environment their findings could easily be swayed by hostility to journalists and newspapers and other authors of unpopular opinions.
CROSSBORDER LIBELS
A recurring issue in the Internet age is whether foreign publishers of libellous material initially published outside Canada can be sued in Canada if the publication is accessible in Canada on a website or through other electronic media. The issue arose earlier this year when Ontario Justice Belobaba was asked to decide whether Conrad Black could bring a libel action in Ontario against the former directors of Hollinger International for a highly critical report about Black's conduct while a senior executive of Hollinger. The justice upheld the court's jurisdiction even though most of the directors were located outside Ontario and even though the report was published on a website in New York and was protected against libel action in the U.S. under the Sullivan doctrine.
Justice Belobaba's decision was supported by earlier precedents. Nevertheless, it constitutes a new threat to freedom of expression on the Internet. It means that authors and publishers can be sued anywhere in the world regardless of whether they could have blocked dissemination of the offending item outside the country of origin and whether or not the publication was protected under the libel laws of that jurisdiction.
It's safe to predict that the Supreme Court of Canada will find this a harder nut to crack than the issues they faced in the judgments released by them before Christmas. If the Supreme Court finds that the plaintiff is entitled to sue in Ontario this makes it all the more important for the court to make it clear that the new responsible communication defence is not restricted to the media, but applies to all persons who have a legitimate reason for wishing to communicate with the public.
