The new responsible journalism defence has helped an Ontario news website defeat a libel action launched by a man named in a police fraud alert. In one of the first applications of the defence (created by the Supreme Court of Canada in 2009), a jury ruled SooToday.com acted responsibly when it published the alert, even though it contained erroneous information about a man with a criminal record for fraud.
The case shows that journalists must make serious efforts to verify a story before publication, in order for the defence to apply. SooToday, an independent web-only news outlet in Sault Ste. Marie, consulted more than 20 sources, commissioned an independent accounting analysis that cast doubt on the man’s investment scheme, and made efforts to locate him for comment.
Read the SooToday.com story on the case.
"Sometimes a practising journalist wonders whether his or her current project is investigative. There’s a good practical answer: if you’re scared, it might be.If you’re not scared, not....
"Sadly the United States, which rarely grasps democratic principle quiteso firmly as orthodox imaginations fancy, has decided that in public discourse, untruth should have equal rights with truth....
"Investigative journalism – ignore for now the question of whether other kinds really exist – is intended to be harmful. And only being afraid gives you any moral justification for the practice. You at least incur some risk roughly related to that you seek to impose on your quarry. It is not a very sturdy justification, because a reporter’s work, if it’s genuine, consists of pushing into the unknown, with consequences obviously impossible to foresee. You may hope to do harm in order to do good, but the outcome can quite readily be only harm."
- Page, Bruce: "Libel: Fear should be the spur." British Journalism Review 21 (1), 2010.
The new defence of responsible communication is good news for the media, but Ryerson University's Jeffrey A. Dvorkin doubts it will usher in a new wave investigative journalism. As layoffs continue and newsrooms are pared down to the editorial bone, the ability of news organizations to engage in deep, contextual investigative journalism is far from what it once was, or what it should be.
And lawyer Alan Shanoff, who teaches media law at Humber College, cautions the devil will be in the details as judges and juries apply the court's broad definitions of public interest and responsible journalism to stories targetted with libel suits. Read Shanoff's columns in The Law Times and the Toronto Sun.
The Supreme Court of Canada has created a new libel defence – the defence of responsible communication on matters of public interest. In a landmark ruling that orders new trials in libel actions against two Ontario newspapers, the court introduced the British defence of responsible journalism with a new name and some made-in-Canada modifications. The defence is based on the conduct of the journalists and editors who produce the story, and can defeat a libel claim even if some facts and allegations published or broadcast turn out to be wrong or false.
The court established a broad definition of the public interest, saying it is not limited to stories on politics and can apply to stories of interest to a limited audience if the subject is of public importance. The rulings set seven criteria for judging whether journalists acted responsibly, including the seriousness of the allegations, the reliability of sources and whether the person defamed was given a chance to respond. There are two other important aspects to the ruling...
Do journalists have the right to protect a confidential source? Can a news outlet be sued for libel if it made every effort to get the story right? Does publicizing a crime make it impossible for the suspect to have a fair trial? These issues are on the Supreme Court of Canada's docket this fall in six cases that will reshape media law in Canada. J-Source law section editor Dean Jobb explores what's at stake in a commentary first published in the Winnipeg Free Press.
The Supreme Court of Canada has reserved judgment on an appeal that could create a new libel defence of "responsible journalism." Media lawyers argued Feb. 17 that journalists who pursue important news stories of public interest should be able to defeat a libel claim if they acted fairly and professionally, even if facts turn out to be wrong or unproven and someone's reputation has been damaged. One judge noted this would grant the media "the right to be wrong." The appeal, if successful, could wipe out a $125,000 libel award against the Ottawa Citizen and would bring our defamation laws in line with those in Britian and many Commonwealth countries
Read the Toronto Star, Canadian Press and The Globe and Mail reports on the hearing.
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