Supreme Court ponders "responsible journalism" defence

The Supreme Court of Canada was last week urged not to create a new "responsible journalism" defence for media organizations because it would injure the ability of individuals to defend their reputations.

The Toronto Star was sued by businessman Peter Grant over a front-page story in June 2001 headlined "Cottagers teed off over golf course; Long-time Harris backer awaits Tory nod on plan". Grant claimed the story defamed him and his company. The Star had argued that stories in the "public interest" that are researched and published "responsibly," following all professional standards, should be shielded from lawsuits. However Grant won a jury award of $1.5 million, later overturned by the Ontario Court of Appeal, which endorsed the Star's position.

Grant appealed this decision to the Supreme Court and a number of media organizations, including Magazines Canada, have given their support to the Star and its case. The Supreme Court, after Friday's hearing, reserved its decision as is customary. According to a report in The Star:

It is the second time in three months that judges have wrestled with the question of whether there should be a new legal protection against libel lawsuits for reporters.

If the judges agree, it would represent a sea change in Canadian common law that would protect media organizations from liability as long as they prove all fair and reasonable steps were taken to ensure a published story was fair and accurate, even if the truth of certain statements could not be proven.

There are already legal protections for stories that can be shown to be true, or which are fair and accurate reports of "privileged" parliamentary or court proceedings, as well as for stories that are "fair comment...."

Most of the judges' questions yesterday focused less on whether such a defence should be created, and more on how it would work – whether a judge or a jury should weigh what is or is not "in the public interest" and what practices should be considered "responsible journalism" and what should not....

The Star's lawyer, Paul Schabas argued that "The law is out of balance" as it stands now, and "allows reputation to trump free speech". Grant's lawyer, Peter Downard argued the notion of a new defence would allow reporters to "publish with impunity" articles that are not true.