Opinion: “Defamation and responsible communication” – Richard Mullender

1 07 2010

The Supreme Court of Canada (inspired by developments in lower Canadian courts and elsewhere in the common law world) has introduced into defamation law a defence of responsible communication on matters of public interest. The court took this step in Grant v Torstar Corp (2009) 314 D.L.R. (4th) 1 with the aim of ensuring that this branch of tort balances reputation and free expression more adequately. This development is broadly similar to innovations in Australia, Britain, New Zealand, and South Africa. Moreover, these innovations in Commonwealth law form part of a process of development that we can trace back to the US Supreme Court’s decision in New York Times v Sullivan 376 U.S. 254 (1964).

In Sullivan, the Supreme Court held that public officials must, in order to recover in defamation, prove “actual malice” (“knowledge that [the statement] was false or … reckless disregard of whether it was false or not”) (at 279-280, per Brennan J.). The judges responsible for the “actual malice” rule and the later Commonwealth developments have identified their respective innovations as means by which to produce socially beneficial outcomes. Thus we find the Canadian Supreme Court in Grant declaring that the responsible communication defence will foster democracy and facilitate the pursuit of truth (at [52] and [57], per McLachlin C.J.). For this reason, consequentialist moral philosophy appears to inform the process of development of which Grant is a part. For consequentialism specifies that we should assess our actions by reference to their effects. Assuming that consequentialism runs like a connecting thread through Grant and the decisions that preceded it, it provides (as we will see) a basis on which to draw distinctions between US and Commonwealth law.

The defendant in Grant published an article that concerned a proposed golf course development on the plaintiff’s lakeside estate. The article contained statements from local residents who suspected that the plaintiff had circumvented the “normal bureaucratic channels” of the (Provincial) Ministry of Natural Resources so as to win Governmental support for the development (at [9]-[12]). Moreover, one resident stated in the article that “everyone thinks it’s a done deal” (at [16]). Prior to publication, a “veteran reporter” (who regarded himself as dealing with “a classic public interest story”) tried to establish whether the residents’ suspicions had a factual basis (at [11]-[14]). Moreover, he sought comment from the plaintiff (who declined to make a response and ultimately threatened the defendant with a libel suit) (at [14]).

Following publication, the plaintiff sued in libel, arguing that the article effectively accused him of using his influence improperly to obtain Governmental favours. At trial, Rivard J. accepted that an expanded qualified privilege defence may now be a feature of Canadian law. The judge also accepted that such a defence would, where journalists have behaved responsibly, serve the public interest. However, he concluded that this defence was not available to the defendant since the article’s import was “local” and its tone was “very negative” (at [19]). Hence, the defendant unsuccessfully ran the defences of truth and fair comment and the jury awarded general, aggravated, and punitive damages totalling CA $1.475 million. The defendant appealed and the Ontario Court of Appeal concluded that Rivard J. should have let the new expanded qualified privilege defence go to the jury (2008 ONCA 796).

This prompted the defendant, in a further appeal, to urge the Canadian Supreme Court to apply the new defence in this case and dismiss the action. McLachlin C.J. and her colleagues accepted that Canadian defamation law has not given adequate protection to free expression on “matters of public importance” (as protected by s.2(b) of the Canadian Charter of Rights and Freedoms) (at [57]). For this reason, she concluded that the court should now identify “responsible communication” as a distinct defence and ordered a new trial (at [95]). She decided not to broaden the existing qualified privilege defence since it is “grounded … in the social utility of protecting particular communicative occasions from civil liability” rather than “free expression values” (at [94]).

In the course of her judgment, McLachlin C.J. emphasises the breadth of the new defence. She states that the “public interest” is not confined to publications that concern governmental and other forms of political activity (at [106]). For this reason, she identifies the new defence as broader in scope than relevant Australian and New Zealand doctrine (at [106]). She adds that, in one respect, the responsible communication defence exhibits greater breadth than US law. For defendants will be able to rely on it where those they have criticised are neither public officials nor public figures (to whom the Supreme Court extended the “actual malice” rule in Curtis Publishing Co v Butts 388 U.S. 130 (1967)) (at [106]). McLachlin C.J. finds further support for the claim that the new defence is broad in the fact that it protects “reportage” (defamatory statements, such as rumour or gossip, recorded but not endorsed by the defendant) (at [76]). On this point, she states (at [120]) that

“if a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory or untrue.”

In allowing defendants to escape liability where the statements they make are untrue, McLachlin C.J. invites a criticism that the Canadian Supreme Court contemplated in one of its recent (defamation-related) decisions. In WIC Radio Ltd v Simpson [2008] 2 S.C.R. 420, the court broadened the range of circumstances in which defendants can rely on the defence of fair comment. While taking this step, Binnie J. (with the support of, among others, McLachlin C.J.) declared that the law should not treat an individual’s reputation as “regrettable but unavoidable road kill on the highway of public controversy” (at [2]).

In Grant, McLachlin C.J. recognises that this stark phrase has relevance to the doctrinal change she and her colleagues (including Binnie J.) are making (at [41]). However, she finds support for the responsible communication defence in a process of “incremental” development already underway in Canada, an “argument grounded in jurisprudence”, and an “argument grounded in principle”. The first of these sources of support has to do with the readiness of Canadian judges, in recent years, “to moderate the structures of qualified privilege” and to recognise a “new responsible journalism defence” (at [21] and [35]) (see, e.g. Cusson v Quan 2007 ONCA 771). Consequently, “media defendants” have been able to avoid liability by showing that the material they publish serves the public interest and that they are under a “social and moral duty” to disseminate it (at [36]). The “argument grounded in jurisprudence” concerns developments in the United States and the Commonwealth (at [66] et seq.). Alongside the US Supreme Court’s introduction of the “actual malice” rule, these developments include the expanded qualified privilege defences in Australia, New Zealand, and the United Kingdom, and a defence of responsible journalism in South Africa. These developments are themselves the fruit of the “argument grounded in principle” advanced by McLachlin C.J. and her colleagues. This argument states that judges should specify rules of defamation law so as to ensure that this branch of tort does not restrict legitimate forms of expression by, inter alia, generating chilling effects (decisions to self-censor prompted by “the fear that the trier of fact … will after the event reject the [defendant's] judgment of truth”) (Tribe, American Constitutional Law, 2nd edn (New York: Foundation Press, 1988), at pp.863-864) (at [39]).

The Canadian Supreme Court could have demonstrated the strength of its commitment to free expression by adopting the “actual malice” rule. For Brennan J. fashioned this rule with the aim of fostering “uninhibited, robust, and wide-open” debate on matters of public interest (Sullivan at 270). Moreover, he sought to make plain a “profound national commitment” to free expression by countering the chilling effects arising from the requirement that defendants prove their allegations to be true (Sullivan at 270). But rather than dwelling on the intoxicating rhetoric that heralded the arrival of the actual malice rule, McLachlin C.J. focuses on its impact on the interests of those who might otherwise secure a remedy. She states that “Sullivan and its progeny have made it extremely difficult for anyone in the public eye to sue successfully in defamation” (Grant at [67]). This explains why the Canadian judges are more receptive to doctrinal developments in the Commonwealth, where “courts have rejected the precise balance struck in Sullivan between free expression and protection of reputation” (Grant at [68]).

In the Commonwealth jurisdictions towards which the Canadian Supreme Court has turned for guidance, judges have pursued a common theme. Where journalists go about their business responsibly and in ways that serve the public interest, they should not run afoul of defamation law–even if they are unable to prove the truth of the statements they make. While pursuing this theme, judges in Australia, New Zealand, South Africa, and the United Kingdom have disagreed on nomenclature and points of doctrinal detail. In Australia, defendants must prove that they have behaved reasonably in order to enjoy the benefits of an expanded qualified privilege defence (Lange v Australian Broadcasting Corp (1997) 189 C.L.R. 520 HC (Aus)). British defendants must show that they have behaved responsibly if they are to run a successful (expanded) qualified privilege defence (Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 HL). South African judges have fashioned a defence that bears obvious similarities to the British defence. But they have styled it “responsible journalism” (National Media Ltd v Bogoshi 1998 (4) S.A. 1196 SCA ). In New Zealand, the law presumes that defendants have behaved responsibly and plaintiffs bear the burden of proof should they wish to dispute this point (Lange v Atkinson [2003] 3 N.Z.L.R. 385 CA (NZ)).

While the Canadian Supreme Court has chosen to call its defence “responsible communication”, it looks very much like the qualified privilege defence described by the House of Lords in Reynolds v Times Newspapers. For McLachlin C.J. has followed the lead given by Lord Nicholls of Birkenhead in Reynolds and has set out an open-ended list of considerations relevant to the question as to whether journalistic practice has been responsible. These considerations include the seriousness of the allegation, the public importance and urgency of the matter, the status and reliability of the source(s), and whether the defendant has sought and accurately reported the plaintiff’s views (at [110]-[122]). This is an approach that proponents of the “actual malice” rule seem likely (as they have with Reynolds ) to identify as a source of chilling effects (at [71]-[72] and [81]).

We might press the analysis of Grant further (and in a less pro-Sullivan direction) by drawing on the philosopher Thomas Nagel who examines the association between pursuit of the public interest and ruthlessness (Nagel, Mortal Questions (1979), Ch.6). The starting point of Nagel’s exposition is what he calls a discontinuity between public and private morality. By this he means that public morality (unlike the private form) places emphasis on the pursuit of outcomes that benefit the public. Moreover, those who pursue these outcomes are typically ready to ignore or pay reduced attention to the action-oriented constraints that feature in private morality (among which we might number respect for others’ reputational interests and dignity: see at [111], per McLachlin C.J.). Thus they may compromise or override the interests of individuals while pursuing some end that benefits the public. We see just this sort of thing in Sullivan. With the aim of fostering robust and uninhibited debate on matters of public concern, the Supreme Court introduced the actual malice rule. The upshot, as the Canadian Supreme Court notes, is that a sub-set of the community finds it extremely difficult to sue in defamation. Here we see the public interest and consequentialism prevailing at the expense of the individual and concerns strongly associated with private morality.

When we turn to the Commonwealth developments that have followed Sullivan, ruthlessness is a less obvious feature of the law. By requiring claimants to prove that defendants lacked an honest belief in the truth of the statements they made, New Zealand law comes closest to the American position. In Australia, Canada, South Africa, and the United Kingdom, the law stands at a greater distance from the American position. In these countries defendants (as we have noted) bear the burden of proving that they have behaved reasonably (Australia) or responsibly (Britain, Canada, and South Africa). Moreover, the stringency of the Australian “reasonableness” requirement provides a ground for placing it at a further remove from Sullivan than British, Canadian, and South African law (at [79], per McLachlin C.J.). But while Commonwealth law varies on points of detail, it has moved closer to Sullivan. However, it does not follow from this point that Commonwealth judges *L.Q.R. 372  are embracing ruthlessness on a distinctly American model. This becomes clear when we survey relevant history. Writing in 18th century England, John Trenchard and Thomas Gordon described defamation as “an evil growing out of a much greater good” (Wilson, What Price Liberty? How Freedom Was Won and is Being Lost (London: Faber and Faber, 2009), at p.82 (from Cato’s Letters, no.32, June 10, 1721)). In this statement, we can see the outlines of ruthlessness in the form that finds expression in the “actual malice” rule. Brennan J.’s judgment in Sullivan bears this out. For he declares that “erroneous statement is inevitable in free debate” (at 271-272, emphasis added).

This prompts the conclusion that Commonwealth and US judges have, in the last five decades, made contributions to a common law conversation that has been unfolding for centuries. At the most general level, this conversation turns on the question as to how we accommodate interests in reputation and free expression. On the analysis offered in this note, we can use the concept of ruthlessness as described by Nagel to make sense of the answers given in Australia, Canada, South Africa, the United Kingdom and the United States. What emerges is that American judges are readier than their Commonwealth counterparts to tolerate “an evil” (reputational damage) growing out of a good that they take to be “much greater” (freedom of expression). But in developing defences that enable defendants to do reputational damage while being unable to establish that the statements they have made are true, Commonwealth judges have exhibited a broadly similar commitment to free expression. Theirs is a position that Trenchard and Gordon would applaud. And it is one that Nagel would classify as an instance of ruthlessness.

Richard Mullender, Reader in Law and Social Theory, University of Newcastle upon Tyne

This article originally appeared in the July issue of the Law Quarterly Review ((2010) 126 LQR 368-372) and is reproduced with permission and thanks

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