The Sheaf

SASKATOON (CUP) – The Supreme Court of Canada has introduced a new defence against libel that could have a profound effect on bloggers and journalists.

A new defence of “responsible communication on matters of public interest” can be used against charges of libel following a December supreme court ruling.

“It’s a really big deal,” said Mary Agnes Welch, Winnipeg Free Press reporter and president of the Canadian Association of Journalists, who explained that Canada’s libel laws are significantly more conservative than in other countries.

The strongest defence against libel is truth, but proving facts to be true in a court of law has been a challenge for many journalists.

“It used to be that you had to have an honest belief in the truth of the facts that you were basing your comment on,” said Reynold Robertson, a lawyer who handles defamation suits for the Saskatoon StarPhoenix.

“Previously, most people couldn’t say they had an honest belief in the facts because they just accepted what they had been told,” he said.

With the new defence, “We can say that the story is substantially accurate,” said Welch. “We don’t have to say it’s completely accurate. As long as we’ve done what all good journalists should do, which is check our sources.

“You can go and say, ‘Here’s everything I did to make sure the story was right and fair.’ . . . This is a pretty radical departure from what it said before, which was basically that you had to prove everything you said.”

Welch feels requiring journalists to be able to prove the truth of everything they print has led to a chilling effect in Canada, where some stories don’t even get printed despite being in the public interest.

Most journalists cannot afford to hire a lawyer to defend against a charge of libel – especially freelancers and bloggers, who are increasingly becoming a source of citizen journalism.

The new responsible communication defence could help reduce the chilling effect and allow more stories of pressing public interest to be published, said Welch.

“All papers have lawyers . . . and on all the awesome juicy stories we get them lawyered, right? And when it comes back, it’s often all the juicy parts that get red-penned right out of there.”

Gibb doesn’t think the new defence will cause a “field day” for investigative journalism, though.

“Sometimes seemingly very innocent-type stories can get you problems just as much,” he said. “It’s sometimes easier for something to slip through if it’s a less complicated story.”

Responsible communication may not reduce the threat of legal action, but it does enshrine ethical reporting practices by asking journalists to account for their reporting process.

The effect of this new defence has potential implications for bloggers, but it has yet to be felt in that realm.

“Not many bloggers have been sued for libel,” said Welch. “Everybody’s kind of waiting for the one big case.”

Blogs may have had a profound effect on public discourse, but they are still a long way from doing well-sourced journalism, said Welch.

Published in Volume 64, Number 17 of The Uniter (January 28, 2010)