Expanding the defence of qualified privilege
Avoiding a defamation suit can be a tricky business. But a series of rulings, including an influential precedent from Britain’s House of Lords, promises to give the Canadian media more leeway to publish or broadcast serious allegations — even unproven ones — in the public interest. The best defence may be good, solid journalism. By David A. Crerar.
By David A. Crerar
A court ruling in the case of Leenen v. CBC described the law of defamation as “a mausoleum of antiquities peculiar to the common law and unknown elsewhere in the civilised world” . . . the result “of centuries of haphazard, Byzantine, and often baffling evolution.” The defamation law is of obvious importance to journalists. Leenen illustrates the risks journalists face when pursuing a controversial story. The case involved a report on CBC television’s fifth estate. The story concluded that the doctor in question was in conflict of interest over his prescriptions of allegedly harmful drugs. The court found the report to be malicious, unbalanced and inaccurate.
An Ontario court awarded the plaintiff $400,000 general damages, $150,000 in aggravated damages, and $200,000 in punitive damages, as well as $836,178 in costs, to be borne not only by the deep-pocketed CBC but by the journalists themselves. The CBC appealed but the ruling was upheld.
Several recent legal decisions promise to clarify the rules of defamation, particularly with regard to mass media publication, of special interest to journalists. These recent decisions move the analysis in a defamation case away from abstract legal tests, and more toward general principles of journalistic ethics and standards of fairness. These changes primarily relate to the amorphous defence of “qualified privilege.”
If an ordinary person (the defendant) makes a statement which turns out to be defamatory (i.e. false and harmful) to another person (the plaintiff), the defendant may still be protected by the defence of qualified privilege if:
1. the defendant had an interest or duty to make the statement, and
2. the person hearing or reading the statement had a corresponding interest or duty to receive it.
Examples of situations generally protected by qualified privilege are a teacher reporting the abuse of a child, or a witness reporting an incident to the police. Even if these persons get the facts wrong and thereby slur another person’s reputation, they may still be protected from an action in defamation. This protection is based on society’s interest in fostering these communications.
There are two difficulties with this traditional two-pronged test for qualified privilege.
First, the terms ‘duty’ and ‘interest’ are very broad and the test notoriously hard to predict in its application. Every recipient of a defamatory statement is arguably “interested” in hearing that information, and the speaker of such defamation “interested” in speaking it.
Second, the defence of qualified privilege traditionally does not cover publications made through the mass media. Courts have rarely found a sufficient reciprocal duty and interest in, for example, a journalist communicating a defamatory matter to a wide audience. It is arguable that the sorts of messages published by media outlets, even those which turn out to be harmful and inaccurate, are of interest for the public. A media defendant can also argue that it has both a right and an interest in publishing those statements.
One important legal decision promises to help clarify the rules of defamation, particularly with regard to mass media publication. In the 1999 Reynolds v. Times Newspapers, a case arising from the defendant newspaper’s defamation of the former Irish Prime Minister, the House of Lords ruled that the “common law should not develop ‘political information’ as a new ‘subject matter’ category of qualified privilege.” Instead, it reaffirmed the traditional interest-duty test by providing useful guidelines for the court to consider in deciding whether the public had an interest in receiving the published information, and whether the publisher correspondingly had a duty or interest to tell the story. The guidelines are enumerated in the following list:
(1) The seriousness of the allegation: the more serious the charge, the more the public is misinformed and the individual harmed if the allegation is false.
(2) Relevance: The nature of the information, and the extent to which the subject matter is a matter of public concern.
(3) The source of the information: reliance on hostile, biased, interested or ignorant sources can misinform the public.
(4) Due diligence: Did the media outlet try to verify the controversial information in the story.
(5) The status of the information: the allegation may have already been subject of an investigation which commands respect.
(6) The urgency: How important is it to communicate the information as quickly as possible?
(7) Seeking balance: Whether comment was sought from the plaintiff, although this may be unnecessary, impractical, or obviously futile.
(8) Reflecting balance: Whether the story contained the plaintiff’s side of the story.
(9) The tone of the story: A publication or broadcast outlet can raise queries or call for an investigation without adopting allegations as statements of fact.[node:ad]
(10) The overall circumstances of the story, including the timing of publication.
The Reynolds is not binding on Canadian courts, but already several judges have cited the case’s factors.
The fact scenarios and judicial reasoning, surveyed below, illustrates how journalists can fall short of the qualified privilege defence as defined by the Reynolds case, and be found liable in defamation.
The plaintiff in the 1997 Grassi v. WIC Radio was a Vancouver fire fighter charged with soliciting prostitutes. The defendant radio station and newspaper reported this arrest in such a manner as to convey the idea that the plaintiff had been charged with soliciting sex from minors. The British Columbia Supreme Court applied the ten Reynolds factors to conclude that qualified privilege did not provide protection. In passing, the Court noted that qualified privilege will rarely protect publication “to the world.” Such broad publication will almost always exceed the bounds of the defence.
The plaintiff in Ramsey v. Pacific Press was Paul Ramsey, a provincial cabinet minister battling a recall campaign. In a Vancouver Province interview Ramsey described the frustration expressed by some of his supporters, that persons who did not bother voting in the last election were now deciding his fate. In the newspaper report, Ramsey was quoted as saying “these guys didn’t even have the energy to get out of the La-Z-Boy and get to the poll.” The co-defendant newspaper mistakenly attributed this characterization of the Prince George non-voting electorate to Ramsey himself. The defendant radio host repeated this mistaken attribution. After a lengthy review of Reynolds, the Court concluded that the defendant should have investigated whether the original report was in fact true. The defendant’s reckless failure to do so deprived it of the defence of qualified privilege.
The Ontario Superior Court of Justice in Leenen v. CBC also made extensive use of the Reynolds factors to conclude that although the fifth estate report on the plaintiff doctor’s alleged conflict in prescribing harmful drugs was of public interest, there was no public interest in the irresponsible and inaccurate manner in which the broadcast was made. Although the allegations might have been of interest to the public, the communication of those false statements was not in the public interest. Therefore the CBC was not protected by qualified privilege.
The British Columbia Court of Appeal in Taylor-Wright v. CHBC-TV did not cite Reynolds, but undertook a similar analysis of balance and fairness. That action arose when a civil war erupted in an Okanagan Valley charitable society, with the new board (which included the individual defendants) accusing the old board (which included the plaintiffs) of financial abuse. The new group filed in the court registry several affidavits detailing these accusations. Although in theory any member of the public could read the affidavits in the publicly accessible registry, they would likely remain relatively private absent wider publication by the media. The media defendants broadcast several early news stories based entirely on the contents of the affidavits, before these affidavits were read out in the more prominent public forum of open court. The Court reviewed the case law and concluded that the defence of qualified privilege protected these media reports of affidavits lying dormant in the court registry, even where those documents have not been read out in open court.
This conclusion that court filings were protected by qualified privilege did not, however, end the enquiry. The Court found that notwithstanding the protection of qualified privilege, the media defendant had to prove that it had exercised a high degree of care in ensuring that its report was accurate and fair. At a minimum, the news report should have made clear to viewers that the plaintiffs had filed their own reply affidavits denying the allegations, and that the court had not yet resolved the dispute. The Court noted that although this duty to provide balanced reports might create practical difficulties for the media, this duty was a necessary check on potential abuse of reporting the contents of potentially irresponsible and inflammatory affidavits filed in the court registry.
Taylor-Wright illustrates one final complication in the law. The defence of qualified privilege is not absolute and may be defeated if the plaintiff can show that the defendant published the statement maliciously. The legal use of the word “malice” here is misleading, however, as it is not limited to its ordinary meaning of animosity or hatred. Instead, publication is deemed malicious and unprotected by qualified privilege if it is published to advance “any indirect motive or ulterior purpose.” It can also be shown by recklessness on the part of the defendants. In other words, if the story was published or broadcast not to convey information accurately, but instead to harm the plaintiff or achieve some other improper goal, no defence protects the defendant.
An example of malice as an “improper purpose” was seen in the 1982 Vogel v. CBC, a leading case in Canadian defamation jurisprudence. In that decision Chief Justice Esson of the British Columbia Supreme Court found that the dominant goal of the media defendants was not to convey information, but rather to create a sensational television program through the repeated untruth that the plaintiff, the British Columbia deputy attorney-general, had manipulated prosecutions. In the more recent Taylor-Wright, however, Justice Esson took pains to emphasise that there is nothing inherently wrong with a media defendant seeking to advance its reputation through an interesting story. Such motivation is not evidence of malice defeating qualified privilege. It is only where the media defendant primarily seeks to produce a sensational story, at the expense of journalistic fairness, that malice is found and the defence defeated.
What advice do these recent decisions offer to Canadian journalists? It is predicted that Canadian courts will increasingly analyse defamation actions over mass media publications with an eye to the Reynolds factors. In order to avoid becoming a test case, journalists would be well advised to use the ten factors in the checklist before publishing or broadcasting a contentious story. For responsible journalists, however, these factors pose no problems: they merely enshrine in law generally-held ethics and practices of journalism. Their formalised entry into the legal world should be welcomed for adding certainty in a murky area of the law.
David Crerar, a lawyer the Vancouver office of Borden Ladner Gervais LLP and an adjunct professor at the University of British Columbia Faculty of Law, has a special interest in defamation and media law.
This article originally appeared in
Media, the magazine of the Canadian Association of Journalists in 2001 Republished with permission. (Note: This article has not been updated and some aspects of defamation law may have changed since its initial publication.)
Cases cited: Full text versions of cases cited in this can be found at:
Leenen v. C.B.C. (2000), 48 OR (3d) 656 (S.C.J.) (not on Internet)
Other cases: Full text versions of precedent-setting cases not cited in this story but of relevance can be found at:
Hill v. Church of Scientology: http://www.lexum.umontreal.ca/csc-scc/en/pub/1995/vol2/html/1995scr2_1130.html
Lange v. Atkinson: http://www.austlii.edu.au/nz/cases/NZCA/2000/95.html
Lange v. Australian Broadcasting: