Canadian court develops media public interest defence to defamation action

The Court of Appeal for Ontario today extended to domestic media organisations the protection of the qualified privilege / media public interest defence to defamation action developed in the UK in Reynolds and Jameel.

The background to the case, Danno Cusson v Quan and Others (2007) ONCA 771, is fairly well-known. The plaintiff, a policeman, had been lauded as a hero after volunteering in the rescue effort after the 9/11 attacks in New York. Subsequently, the defendants published a number of articles suggesting that in fact the plaintiff had misrepresented himself to the New York police as being a member of the Royal Canadian Mounted Police; that he might have compromised rescue operations by misrepresenting himself and his dog as being properly trained for K-9 rescue efforts; that he had been asked to leave Ground Zero by the New York police, and that he faced police disciplinary charges for his conduct. The trial judge had ruled that the qualified privilege defence was not available for most of the allegations published.

In the Court of Appeal, Sharpe J.A. explained that the Canadian law regarding the availability of the qualified privilege defence to the media was "in a state of flux and evolution" although it was thought to be "considerably limited by a series of decisions from the Supreme Court of Canada and from this court dating from the 1950s, 60s and 70s". That said, he then highlighted a "significant line of more recent authority" that justified the view that the defence was available to the media on appropriate occasions. The issue then was simply put: "should the law of qualified privilege remain frozen in its 1950s, 60s and 70s state, or should it evolve to afford the media greater latitude when reporting on matters of public interest"? One might suggest that the writing was on the wall once the question had been phrased in this way.

After reviewing the Canadian lines of authority, Sharpe J.A. drew upon parallels in UK, Australian, New Zealand, US, and South African case law. He reflected that "while evolution of the law of defamation has produced a variety of solutions in different jurisdictions, the evolution away from the common law’s traditional bias in favour of the protection of reputation is strikingly uniform. The courts of [other jurisdictions] have all concluded that the traditional common law standard unduly burdens freedom of expression and have all made appropriate modifications to achieve a more appropriate balance between protecting reputation on the one hand and the public’s right to know on the other". Relying on section 2 of the Charter of Rights and Freedoms, Sharpe J.A. saw no difficulty in overruling the prior Supreme Court jurisprudence.

Having asserted 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 J.A. nevertheless expressed reservation at introducing a malice test to accompany an expanded QP defence. He worried that "malice is notoriously difficult to prove and the adoption of a malice standard would, as a practical matter, make recovery for most plaintiffs a remote possibility". He envisaged a "dramatic and unwarranted shift in the law that would unduly minimize the protection of the important value of individual reputation" were this approach to be pursued.

In his mind, the new 'public interest responsible journalism defence' was a new jurisprudential creature (akin to that perceived by some of their Lordships in Jameel), and one that does not include a stand-alone malice test as would the traditional defence. Rather the responsible journalism test was deemed to have subsumed the malice question altogether, both in the UK and in Canada. Intending to adopt what he considered to be the UK approach, the appeal judge rejected the specific categorical approach of Australia and New Zealand that restricts the defence to political speech (this would "introduce a potentially troublesome distinction between various types of expression that would unnecessarily complicate the law").

Many thanks to Andrew Kidd of the current LLM class at LSE who highlighted the case, having acted as junior counsel for one of the parties.