Canada adopts Reynolds defence

Supreme Court creates ‘responsible communication’ defence to defamation claims

The Supreme Court of Canada last month adopted a ‘responsible communication’ defence, almost identical to Reynolds privilege in England and Wales.

In a judgment delivered on 22 December 2009, Supreme Court Chief Justice Beverley McLachlin, giving the judgment of all nine justices, ruled that the current law with respect to statements which were reliable and important to public debate did not give sufficient weight to the constitutional value of free expression. A defence allowing publishers to escape liability if they could establish that they acted responsibly in trying to verify the information on a matter of public interest was a reasonable and proportionate response to the need to protect reputation, while sustaining the public exchange of information which was vital to modern Canadian society.

The new defence is to be known as ‘responsible communication’ rather than ‘responsible journalism’ as it is explicitly designed to protect not just the traditional news media, but also other distributors of information, such as online media and bloggers.

The availability of the defence depends on the same two issues as Reynolds. Firstly, the publication in question must be on a matter of public interest, a question that will be answered by a judge alone. That includes stories “inviting public attention,” affecting “the welfare of citizens,” or involving “considerable public notoriety or controversy.”

If the first condition is met, a jury will be asked to determine if the new defence applies, while considering a list of eight factors (similar to Lord Nicholls’s ten in Reynolds): seriousness of the allegation; public importance of the matter; urgency; 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. The court affirmed that this was to be viewed as a new defence, leaving the traditional defence of qualified privilege intact.

The defence therefore only differs from Reynolds in two respects: (1)that it appears to expressly include ‘reportage’, and (2) that the question of responsible communication is one for the jury (rather than the jury finding facts for the judge to rule upon).

It is notable that, at a time when the libel laws of England and Wales are being criticised by the media and bodies such as Index on Censorship as not giving enough protection to publishers, other countries continue to choose to adopt those very laws as striking the right balance between freedom of expression and protection of reputation, Ireland’s Defamation Act 2009 being the most recent example prior to this Canadian Supreme Court decision.