Ontario Appeals Court Strengthens Libel Defense For Canadian Journos

By: Mark Fitzgerald An appeals court in Ontario has significantly strengthened the defenses the Canadian press can use against libel and defamation claims.

"It's not quite New York Times v. Sullivan ... the judge wasn't prepared to go that far, but he did change (libel law) significantly," Tony Wong, a partner in Canada's largest libel defense firm, Blakes, Cassels and Graydon LLP, told E&P Thursday.

In his opinion, Judge Robert J. Sharpe of the Court of Appeal for Ontario explicitly refused to adopt the New York Times v. Sullivan standard that requires a "public figure" to prove "actual malice," that is that a defamatory statement was published with knowledge that it was false or with reckless disregard to its truth or falsity.

But Sharpe also made it clear that he wanted to tilt Canadian libel law more towards favoring freedom of expression than protecting reputations.

"Under the traditional common law regime, society makes a clear choice to forego a certain level of exposure, scrutiny and criticism on matters of public interest in the name of protecting individual reputation," he wrote. "That choice sacrifices freedom of expression to the protection of reputation to a degree that today cannot be sustained as consistent with Charter values." The reference is to the Canadian Charter of Rights and Freedoms adopted in 1982.

"I agree with the courts of England, Australia, New Zealand, South Africa and the United States, and with the Canadian judges who have gradually expanded the defense of qualified privilege, that the inhibiting effect of traditional defamation law is incompatible with the climate of free and robust debate to which a democratic society aspires," Sharpe wrote.

"Qualified privilege" provides protection from libel and defamation claims when a statement is published by the journalists on a matter of public interest, Blakes' Wong said. The old law required journalists prove the statement was published to "fulfill a social, legal or moral duty," he added. "It means they can do a story without fear of libel so long as they do it responsibly," he said.

The defense is also called the "public interest responsible journalism defense."

Wong, whose firm represents The Toronto Star and defended the Washington Post in a landmark online libel case, said the standard favors newspapers. "Our clients act responsibly, they speak to the other side, they provide balance, they use reliable sources."

Because the Ontario appeals court is the highest in the province, this precedent applies to all lower courts. But it will have a nationwide impact because it is the ruling of the highest court in the biggest province, Wong said. "I know my colleagues in other provinces are very happy to have this defense passed," he said. "In the past, there was some doubt that the media could even benefit from this 'qualified privilege.' Now that's very clear."

Ironically, this victory for the press came in a case in which the newspaper defendant lost.

Danno Cusson, an officer in the Ontario Provincial Police, sued The Ottawa Citizen, its reporters Douglas Quan, Kelly Egan, Don Campbell, and CanWest's Southam Publications subsidiary over articles that said Cusson had gone to the World Trade Center ground zero immediately after the 9/ll attacks without invitation to help with search and rescue. On the site, he misrepresented himself as a Mountie and his pet dog as a trained search animal, the newspaper articles said. Cusson was eventually thrown out of the site by New York City police, the articles said.

A lower court found that he great bulk of the stories were true and not defamatory, but that there were some defamatory statement the newspaper could not prove were true.

"The weird thing about Canadian libel law is there's a presumption of falsity," Wong said. "If a statement is defamatory, it's presumed to be false."

The Citizen defendants were ordered to pay C$100,000.

The appeals court refused to overturn the award on the grounds that the defendants had never raised the "public interest responsible journalism" defense in the lower court, and thus could not rely on it in a higher court.

"This is akin to losing a key battle, but winning the war on principle," Canadian Newspaper Association (CNA) President and CEO Anne Kothawala said in a statement.

CNA, the Globe and Mail, and the Canadian Media Lawyers Association intervened in the appeal, and pushed for accepting the "public interest responsible journalism" defense in Canadian law.

"The old law unduly chilled freedom of expression," Kothawala said. "Responsible journalism is the point at which a fair balance is held between freedom of expression and protection of the reputation of individuals. The old law tilted far too far in favor of protecting reputation, even in the face of entirely responsible journalism in the public interest. A far more reasonable balance has now been achieved."

The full text of the ruling has been posted on the CNA website, www.cna-acj.ca.