Canadian Underwriter

Supreme Court creates new defence for defamation: will it change a company’s exposure to reputational risk?

December 23, 2009   by Canadian Underwriter

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Corporate risk managers may wish to review their reputational risk in light of a new defence that protects publishers from defamation so long as their communications are found to be responsible and relate to matters of public interest.
“Freewheeling debate on matters of public interest is to be encouraged and the vital role of the communications media in providing a vehicle for such debate is explicitly recognized in the text of s. 2(b) [of the Canadian Charter of Rights and Freedoms] itself,” the Supreme Court of Canada ruled in Grant v. Torstar Corp.
“Although the right to free expression does not confer a licence to ruin reputation, when proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”
To be protected by the court’s new defence of “responsible communication,” the publication must be on a matter of public interest.  Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.
In previous libel law, a defamatory statement had to be proven true in order to be a protected form of speech under the Charter. Now, even if the published defamatory statement is not, strictly speaking, true, it may nevertheless be protected as long as it is in the public interest, and the publishers — including online bloggers — make a genuine effort to verify its accuracy and find and publish any dissenting views.
“To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached,” the court found. “Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a ‘public figure.'”
In Grant v. Torstar, Peter Grant and Grant Forest Products Inc. brought a libel action against a newspaper and a reporter after an article was published concerning a proposed private golf course development on Grant’s lakefront estate. 
The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that Grant was exercising political influence behind the scenes to secure government approval for the new golf course. 
The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of Grant’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking Grant for comment, which Grant chose not to provide.