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New Canadian responsible journalism defamation defence

By Steven | December 23, 2009

The Canadian Supreme Court has followed most of the rest of the common law world in developing a privilege to publish information in the public interest, providing the publication was “responsible”. Both are elements for the defence to prove. It’s broadly similar to the UK defence in Reynolds – so it’s wider than the current versions of the defence in NZ and Australia.

What’s “responsible journalism”? The SC has set out a series of factors closely resembling Lord Nicholls’ ten factors from Reynolds. Here’s a summary from the headnote:

The judge determines whether the impugned statement relates to a matter of public interest.  If public interest is shown, the jury decides whether on the evidence the defence of responsible communication is established.  The following factors may aid in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances.

Note that they’ve snuck in some a version of neutral reportage – see factor (g) and also paras [119] and [120]. It remains to be seen whether this will require categorisation of articles as reportage or investigative, which has been the suggestion in the UK, where Reynolds applies to investigative journalism, and neutral reportage to non-investigative accounts of important public disputes. Perhaps the Canadian approach is more flexible, and asks more simply whether the degree of care exercised was appropriate in the circumstances…

See also the Cusson case, also hot off the press and to similar effect.

Topics: Defamation, NZ Bill of Rights Act | No Comments »


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