Responsible Communication and Defamation

Responsible communication on matters of public interest:

An analysis of the modification to qualified privilege


In 2009, the Supreme Court of Canada modified the law of defamation by  creating the defence of responsible communication on matters of public  interest. The foundation for this new defence emerged from the renowned  decision by the House of Lords in Reynolds v Times Newspapers Ltd. In  effect, the defence offers significantly more protection to journalists than  qualified privilege. This article will analyse the development and  establishment of the responsible communication defence in Canada and  then attempt to determine if this new defence could be applied in Australia.  The author is of the view that Australian media would benefit from a new  protection from defamation suits, thereby giving greater strength to the  public exchange of information that is vital to the health of Australian society.

Introduction

In 1817, Lord Ellenborough of the King’s Bench heard the matter of Brown v Croome. At issue was an advertisement in a Gloucestershire newspaper that called into question the character of Brown, making reference to the circumstances of his bankruptcy. Croome argued the advertisement was a privileged communication as it was his duty to inform the public about Brown’s dealings. Lord Ellenborough disagreed, ruling that ‘every unauthorized publication to the detriment of another, was in point of law, to be considered as malicious’.

This statement provides an interesting perspective on how much the law of defamation has changed over the past 200 years of jurisprudence. Had the ruling of Lord Ellenborough stood the test of time, modern journalism as we know it would simply not exist. Later in the 19th century, Cockburn CJ of the King’s Bench brought the law of defamation in the opposite direction from Lord Ellenborough, ruling that ‘a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know’.

The challenge contemporary Australian courts face is balancing the right to information with an individual’s right to protect their reputation. Living at the core of this balance is defamation law.

The common law’s approach to defamation is constantly in flux, with some jurisdictions tending to favour those who publish information, while others favour the protection of reputation. In Australia, the courts have recognised the necessity to freely exchange ideas without the threat of liability in defamation in special situations. For example, parliamentary or court proceedings that happen to contain a defamatory statement will normally attract the defence of absolute privilege, regardless of their ‘truth or falsity or the motive which inspired the making of them’. However, journalists will not qualify for this defence unless they are personally appearing as a witness in court or before a parliamentary body. In situations that involve media coverage of a defamatory statement in these types of proceedings, journalists and publishers may raise a defence of qualified privilege. To rely on this defence, the defendant must show there was a duty to provide certain information, the public had an interest in receiving it, and that the defendant was not acting maliciously when publishing the information.

At common law, qualified privilege was generally not available ‘where the information has been disseminated to the public generally’. The High Court of Australia attempted to extend the defence in Lange v Australian Broadcasting Corporation, implying a constitutional protection for publications related to government and politics. However, qualified privilege under Lange has been criticised as offering little protection to publishers due to the narrow circumstances where it can be applied. Nevertheless, as it stands at common law in Australia, when a defamatory matter is communicated to the public at large, a defendant may rely on qualified privilege so long as the matter was a political communication and the defendant’s conduct was reasonable, not actuated by malice.

In statute, Australia has adopted uniform defamation legislation in each of the states and territories, collectively referred to as the National Uniform Defamation Legislation (‘NUDL’). Prior to the introduction of the NUDL, defamation law in Australia was subject to eight different regimes spread across eight different jurisdictions. This was obviously very problematic, confusing, and expensive to litigate, especially in an age of national media. In terms of its effect on qualified privilege, the NUDL expanded the defence so that it applies to all matters of public interest, so long as the publisher acted reasonably in the circumstances.

Two years after Lange but before the introduction of the NUDL, the House of Lords delivered its well-documented and widely renowned judgment in Reynolds v Times Newspapers Ltd. The facts of Reynolds surround an article published in a British national newspaper about the November 1994 resignation of Albert Reynolds, then prime minister of Ireland. It was alleged that Reynolds had deliberately and dishonestly misled the Irish Parliament and his coalition cabinet by suppressing vital information. The Reynolds decision effectively expanded qualified privilege to circumstances where publishers communicate to the world at large defamatory material on matters of public concern, so long as they acted responsibly. The notion of responsible journalism on a matter of public interest became known as the ‘Reynolds privilege’ and was quickly recognised as a media-friendly development. However, for reasons to be discussed later, the Reynolds privilege proved difficult to apply.

In Canada, courts were departing from an earlier conservative stance that preferred reputation above freedom of expression by slowly easing the strictures of qualified privilege. The uncertainty surrounding qualified privilege in Canada, along with its inconsistencies with the Charter of Rights and Freedoms, effectively forced the hand of the Supreme Court of Canada to modify the law. In her lead judgment in Grant v Torstar, McLachlin CJ said:

 The traditional common law defence of qualified privilege, which offered no  protection in respect of publications to the world at large, situates itself at one end  of the spectrum of possible alternatives. At the other end is the American approach  of protecting all statements about public figures, unless the plaintiff can show  malice. Between these two extremes lies the option of a defence that would allow  publishers to escape liability if they can establish that they acted responsibly in  attempting to verify the information on a matter of public interest.

The Supreme Court of Canada went on to create the defence of responsible communication on matters of public interest, leaving the traditional defence of qualified privilege intact. As one Canadian academic put it, the defence grants journalists reporting on issues of public importance ‘the right to be wrong . . . not completely wrong, of course, but the defence will defeat a libel claim if, despite the journalist’s best efforts, some facts or allegations turn out to be wrong or false’. As will be discussed throughout, the new defence is very media-friendly when compared to qualified privilege. This research will analyse the development and formulation of the responsible communication defence, and attempt to determine what, if any, application it may have on the defamation landscape in Australia.

A brief discussion on qualified privilege in Australia

Qualified privilege as a defence to defamation in Australia exists in two branches: at common law and under s 30 of the NUDL. In general, qualified privilege at common law does not provide much protection to the media.

The problem publishers face when trying to raise a qualified privilege defence is that it is very narrow in scope, often applied rigidly by the courts. At common law, a defamatory publication does not attract qualified privilege merely because it deals with a matter of public interest.

However, in 1994 the High Court delivered landmark decisions in Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd. These decisions implied into the Australian Constitution a freedom of speech concerning political and governmental affairs, expanding qualified privilege to cover media publications about political matters. The High Court was somewhat divided over the implied constitutional protections, specifically in Theophanous. Several years later, a unanimous High Court clarified the law, confirming in Lange that the common law defence of qualified privilege extends to the media in matters related to political communication.

The facts of Lange concern a current affairs television program that criticised the conduct of New Zealand’s then Prime Minister, David Lange. Lange said the program conveyed to the public at large that he was unfit to hold public office. The High Court held that ‘each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia’.

While Lange solidified the extension of qualified privilege in Australia, it also weakened it. Under Theophanous, privilege could only be defeated by malice, but under Lange, all political publications face the reasonableness test. To establish reasonableness, the court said the defendant must show:

• there were reasonable grounds for believing the imputation was true;

• proper steps were taken, so far as they were reasonably open, to verify the accuracy of the material;

• the imputation was not believed to be untrue; and

• a response was sought from the person defamed and it was published, except in cases where a response was not practicable or it was unnecessary.

The requirement of reasonableness has been a demanding standard for media defendants to meet in practice. While Lange resembles Reynolds in its focus on reasonableness, Reynolds appears to be far more beneficial to journalists as it applies to matters beyond political communication and the reasonableness test is not applied as stringently. Nevertheless, the courts have made it very clear that Reynolds is not part of Australian law.

The key consideration for qualified privilege at common law is the occasion in which the defamatory statement was made. As a general rule, the common law protects the publication of defamatory matter made on an occasion where one person has a duty or interest to make the publication and the recipient has a corresponding duty or interest to receive it. According to Simpson J of the NSW Supreme Court, the determination of a defence of qualified privilege at common law involves three strands of inquiry:

• dentification of an occasion of qualified privilege by reference to all of the circumstances in which the communication is published, including, particularly, the subject matter of the communication. This involves the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and a reciprocal interest in the recipient in receiving a communication with respect to that subject matter;

• determination whether the content of the communication was relevant, germane, or sufficiently connected to that occasion or subject matter; and

• (only if both occasion and relevance are established) determination whether, notwithstanding that occasion and relevance are established, the occasion was misused, or used for an ulterior or extraneous purpose, such as to give rise to a finding that the publisher was actuated by express malice.

In 2010, the High Court considered the occasion as it relates to qualified privilege in the matter of Atkas v Westpac Banking Corporation. In that case, Westpac mistakenly dishonoured a number of cheques drawn by the applicant’s real estate company. The cheques were returned to the payees stamped ‘Refer to Drawer’. Because this expression was widely understood to mean that there were insufficient funds to meet the cheque, the applicant sued the Westpac for defamation. Westpac brought a defence of qualified privilege, claiming the payees had sufficient interest in receiving the communication that the cheques were dishonoured, despite the fact that the dishonour was based on an erroneous understanding on the part of Westpac. The court was divided on whether the occasion gave rise to qualified privilege.Amajority of 3:2 held that the occasion did not allow for the defence — while Westpac had an interest in communicating that it refused to pay, the payee did not have an interest in receiving the communication, mainly because it was erroneous to being with. Heydon and Kiefel JJ discussed the danger of focusing on the contents of the defamatory statement itself, as opposed to the broader occasion as a whole. In dissent, their Honours noted that the fact the communication was a mistake was irrelevant. The important consideration is that where a cheque is being dishonoured, a bank has a duty to communicate the matter to the payee, and the payee has an interest in receiving the information.

The High Court’s decision in Aktas emphasises the need to focus on the duty/interest of the occasion in which the defamatory statement is made. However, the result of Atkas appears to limit qualified privilege as only being available where the publisher has not made any error.

Statutory qualified privilege

The NUDL deals with the defence of qualified privilege under s 30. For the defence to be available, the defendant must prove:

• the recipient has an interest or apparent interest in having information on some subject;

• the matter is published to the recipient in the course of giving to the recipient information on that subject; and

• the conduct of the defendant in publishing that matter is reasonable in the circumstances.

Clearly, statutory qualified privilege is broader than the common law version, offering a defence to the media publishing on important public matters, even when they cannot prove the truth of the defamatory allegations they are publishing. However, just as with the common law approach, courts have interpreted the words ‘reasonable in the circumstances’ narrowly.

In order to determine if publishing the defamatory matter is reasonable, the NUDL provides a list of considerations the court may take into account. They are:

• the extent to which the matter published is of public interest;

• the extent to which the matter published relates to the performance of the public functions or activities of the person;

• the seriousness of any defamatory imputation carried by the matter published;

• the extent to which the matter published distinguishes between suspicions, allegations and proven facts;

• whether it was in the public interest in the circumstances for the matter published to be published expeditiously;

• the nature of the business environment in which the defendant operates;

• the sources of the information in the matter published and the integrity of those sources;

• whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;

• any other steps taken to verify the information in the matter published; and

• any other circumstances that the court considers relevant.

These factors are a combination of those found under s 22 of the Defamation Act 1974 (NSW) and the Reynolds factors. Interestingly, s 30 of the NUDL does not expressly include two of the key provisions from the reasonableness test prescribed by the High Court in Lange: the publisher does not need to show reasonable grounds for believing the imputation was true, nor is it required that the publisher not believe the imputation to be untrue. This is an important distinction as it reflects a changing attitude towards malice.

Under statutory qualified privilege or at common law, even where the requirements of qualified privilege have been met, the defence can be defeated if the plaintiff proves that the defamatory matter was actuated by malice. While malice can be proven in a variety of ways, in Roberts v Bass, Gaudron, Gummow and McHugh JJ held that if the defendant knew that the defamatory matter was false or was made recklessly to the point of wilful blindness, it will constitute almost conclusive proof that its making was actuated by malice. Their Honours went on to say that a lack of belief in the truth of the defamatory material will not be sufficient by itself to prove malice.

Overall, because the standard of reasonableness is lower and because it applies to all matters of public interest, rather than specifically those related to political matters, s 30 of the NUDL has a wider application for qualified privilege than the common law under Lange. As a result, it is a more favourable defence to the media.

Development of the responsible communication defence

The origin of the responsible communication defence emerges from Reynolds. Before the matter was heard by the House of Lords, the Court of Appeal dismissed the appeal from the defendants, affirming that Times Newspapers was not entitled to a defence of qualified privilege in the proceedings, formulating this decision based on the ‘circumstantial test’.

The circumstantial test from the Court of Appeal ‘broke new ground’ as an additional test which had to be satisfied in relation to any occasion where qualified privilege is sought. However, the test was criticised by the House of Lords as giving rise to ‘conceptual and practical’ difficulties. The Times argument that the common law should develop political information as a generic category whose publication automatically attracts qualified privilege regardless of the circumstances was also rejected. In the words of Lord Nicholls, such a development would not provide adequate protection for reputation. Instead of introducing a circumstantial test or new generic category, the court stretched the common law approach to qualified privilege, allowing the court to analyse the factors behind the publication, in conjunction with the traditional duty-interest test, to determine if the publication was in the public interest.

Lord Nicholls listed the matters that can be taken into account in the circumstantial test. They are:

(a) the seriousness of the allegation.

(b) the nature of the information, and the extent to which the subject matter is a matter of public concern.

(c) the source of the information.

(d) the steps taken to verify the information.

(e) the status of the information.

(f) the urgency of the matter.

(g) whether comment was sought from the plaintiff.

(h) whether the article contained the gist of the plaintiff’s side of the story.

(i) the tone of the article.

(j) the circumstances of the publication, including the timing.

The factors outlined by Lord Nicholls were meant to be illustrative only, serving as a guideline to judges to determine if the publication was subject to qualified privilege. However, some legal commentators noted that the Reynolds defence was of little value to publishers because the 10 factors were being treated as hurdles to be surmounted. After several years of uncertainty about the application and scope of the decision, the House of Lords clarified the Reynolds defence in Jameel v Wall Street Journal, saying that the list of factors was not meant to be ‘a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege’.

The facts of Jameel involved an article published in the European edition of the Wall Street Journal with the heading: ‘Saudi Officials Monitor Certain Bank Accounts’. The article alleged that the Saudi Arabian Monetary Authority (the Kingdom’s central bank) was, at the request of United States law enforcement agencies, monitoring bank accounts associated with some of the country’s most prominent businessmen in a bid to prevent them from being used for funnelling funds to terrorist organisations. The article named a number of companies and individuals including the respondents, Mohammed Abdul Latif Jameel and his company Abdul Latif Jameel Co Ltd.

The Wall Street Journal relied on the Reynolds defence. This claim was rejected by the trial judge and the Court of Appeal, on the grounds that the Jameels were not given sufficient time to comment on the proposed publication and that ‘there was no compelling reason why Mr Jameel could not have been afforded 24 hours to comment on the article’. This was seen by the House of Lords as a very rigid application of the Reynolds factors, especially considering the information published in the article was confirmed by several sources, including a United States embassy official and a senior Saudi official. In applying a previous statement by Lord Nicholls, Lord Hoffman said the standard of conduct required of the newspaper must be applied in a practical and flexible manner, having regard to practical realities, giving deference to the editorial judgment of editors and journalists.

By this time, Australian courts had extended qualified privilege to encompass information that was published when it was reasonable in the circumstances. English courts, on the other hand, were laying the foundations for a defence based on ‘responsible journalism’. As Lord Nicholls said in Bonnick v Morris:

 Stated shortly, the Reynolds privilege is concerned to provide a proper degree of  protection for responsible journalism when reporting matters of public concern.  Responsible journalism is the point at which a fair balance is held between freedom  of expression on matters of public concern and the reputations of individuals.  Maintenance of this standard is in the public interest and in the interests of those  whose reputations are involved. It can be regarded as the price journalists pay in  return for the privilege.

Cusson v Quan — Ontario Court of Appeal

Before the Supreme Court created the defence of responsible communication on matters of public interest in 2009, the Ontario Court of Appeal created the responsible journalism defence in 2007. The responsible journalism defence materialised from the case of Cusson v Quan. It was modelled off the approach of the English courts, except it was a new defence altogether, not just an extension of qualified privilege.

The facts of Quan surround a series of articles published in the Ottawa Citizen about Danno Cusson, a constable with the Ontario Provincial Police. Shortly after the attacks on 11 September 2001, Cusson travelled to New York without the permission of his employer to assist with the search and rescue efforts at Ground Zero. According to one article, Cusson had presented himself to the New York State Police as a Canadian federal police officer trained in K-9 rescues which, according to several sources, was false. Initially, Cusson was portrayed in the media as a hero. However, in one of several follow-up articles, Cusson was accused of misrepresenting himself and hampering early rescue efforts. Cusson brought a libel action against the newspaper, the reporters, and OPP Staff Sargeant Penny Barager, who was quoted in several of the articles.

At trial, the defendants sought to rely on qualified privilege, arguing Cusson’s activities in New York were a matter of public interest, and that the media had a duty to publish the information while the public had a reciprocal interest in receiving it. The trial judge rejected this argument, saying ‘there was not a compelling, moral or social duty to publish’ the information. However, the trial judge did say that qualified privilege applied in relation to an article about Cusson’s disciplinary proceedings, as this constituted a court proceeding. The jury went on to award Cusson $100 000 in general damages against the Ottawa Citizen and $25 000 against Penny Barager, on the basis that several imputations could not be proven, including that the plaintiff may have compromised theWorld Trade Centre rescue effort and had no search and rescue training.

The defendants appealed the decision to the Ontario Court of Appeal. The court unanimously dismissed the appeal, despite adopting the reasoning in Reynolds. Writing for the court, Sharpe JA noted that Jameel was not decided until after the original trial, and therefore, the appellants did not have an opportunity to advance the reasoning of a similar defence at the trial level. Ultimately, the court held that it would be unfair to the plaintiff and wrong for the court to order a new trial to permit the appellant to litigate the question of responsible journalism. Nevertheless, the Court of Appeal undertook an extensive review of the Canadian law of qualified privilege, factoring in the recent developments in other common law jurisdictions.

Prior to the Quan decision, qualified privilege in Canada was in a state of flux. In a series of decisions throughout the 1950s and 1960s, the Supreme Court of Canada took a very narrow position, especially when it came to publications in newspapers. For example, in Douglas v Tucker, Saskatoon’s Star-Phoenix published excerpts from a speech made by the Premier of Saskatchewan containing allegations that the leader of the opposition party faced charges of fraud. The plaintiff had in fact been sued for fraud, but at the time of publication, a motion to strike the pleading had been adjourned to allow for the filing of responding material. At trial, the defendant was allowed to rely on qualified privilege. However, this decision was overturned by the Saskatchewan Court of Appeal. The Supreme Court upheld the Court of Appeal’s ruling. Cartwright J, writing for the Supreme Court, bluntly said, ‘such a privilege is lost if the publication is made in a newspaper’.

In Jones v Bennett, the plaintiff was a public servant who was charged by the Attorney-General of British Columbia for unlawfully accepting benefits. On the same day he was charged, an Order in Council was passed that relieved the plaintiff from his duties. The charges against the plaintiff were eventually dismissed, and as a result, he refused to vacate his office. This led the government to introduce a peculiar bill in the provincial legislature: ‘An Act to Provide for the Retirement of George Ernest Pascoe Jones’. The defendant was, at the time, the Premier of British Columbia. During a speech that the defendant delivered at a meeting of supporters of his political party, he used the following words: ‘I’m not going to talk about the Jones boy. I could say a lot, but let me just assure you of this; the position taken by the government is the right position’. The plaintiff then brought an action for slander. The defendant attempted to rely on qualified privilege but the defence failed. The Supreme Court unanimously concluded that the Premier must have known that whatever he said would be communicated to the general public because two reporters sat at a press table in full view of the speaker’s table. In following the decision from Tucker, the Supreme Court once again affirmed that where the words complained of are published to the world, then qualified privilege is not an available defence. Interestingly, the court said in obiter that had the defendant made his comments with no reporters present, then he would have been able to successfully rely on qualified privilege. It is also worth noting that, as with the Tucker decision, the judgment of the court was given by Cartwright J.

This line of decisions remained intact for a decade, maintaining the landscape of qualified privilege as a defence that does not apply to communications made to the world at large. The rigid protection of reputation over free expression did not start to ease until the late-1970s when the Ontario Court of Appeal decided, in stark contrast to Jones v Bennett, that the media could be protected by qualified privilege. In reversing the trial judgment that qualified privilege could not be made out, Jessup JA said in Stopforth v Goyer:

 In my opinion the electorate, as represented by the media, has a real and bona fide  interest in the demotion of a senior civil servant for an alleged dereliction of duty   [. . .] The appellant had a corresponding public duty and interest in satisfying that  interest of the electorate.

Developing the ‘responsible journalism’ defence

Canadian case law began evolving qualified privilege in favour of publishers. More and more courts were beginning to apply the principle that qualified privilege could be established if there was a public interest in publishing the defamatory material to the public at large.

However, this line of reasoning was complicated by the Supreme Court’s decision in Hill v Church of Scientology. The facts of Hill involve defamatory statements at a Church of Scientology press conference about unfounded contempt of court allegations against a Crown attorney, Casey Hill. At trial, a jury found in favour of Hill and awarded $1.6 million in damages. Subsequent appeals by the defendant were dismissed by both the Ontario Court of Appeal and the Supreme Court. What emerged from Hill is the principle that in the context of civil litigation, the Charter of Rights and Freedoms will apply to the common law to the extent that the common law is found to be inconsistent with Charter values. In the case of qualified privilege, the court discussed the competing balance between the freedom of expression and the protection of reputation. While the freedom of expression is found within the Charter, the protection of reputation is not. However, Cory J, writing for the majority, said, ‘the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights’. Ultimately, the court sided with the protection of reputation, saying defamatory statements are very tenuously related to the core values which underlie the freedom of expression provision of the Charter.

Ultimately, after thoroughly reviewing Canadian case law, factoring in certain Charter values, and carefully considering recent changes throughout the common law world, the Ontario Court of Appeal in Quan concluded that the traditional common law standard for qualified privilege unduly burdens freedom of expression. A more appropriate balance between protecting reputation on the one hand and the public’s right to know on the other was needed. The court decided the most appropriate way to reconcile the varying authorities on the issue was to adopt a public interest defence for responsible journalism.

In adopting the defence, Sharpe JA noted that earlier Supreme Court decisions must be respected, namely the principle that ‘individual reputation should not be unduly sacrificed or compromised’. However, Sharpe JA also said the earlier, more restrictive Supreme Court decisions did not preclude the Court of Appeal from adopting the Reynolds/Jameel defence, namely, because it is a ‘different jurisprudential creature’.

In formulating the new defence, the categorical approach of Australia was expressly rejected, specifically the limitation to political communication. The court said such an approach would introduce a potentially troublesome distinction between various types of expression, unnecessarily complicating the law, and all the while violating the Charter’s broad protection of all forms of expression. The adoption of the new defence was expressed in the following words:

 We should not, as the House of Lords cautioned, adopt the Reynolds-Jameel defence  in a slavish or literal fashion, but rather accept it in a manner that best reflects  Canada’s legal values and culture. The defence rests upon the broad principle that  where a media defendant can show that it acted in accordance with the standards of  responsible journalism in publishing a story that the public was entitled to hear, it  has a defence even if it got some of its facts wrong. That standard of responsible  journalism is objective and legal, to be determined by the court with reference to the  broader public interest. The non-exhaustive list of ten factors from Reynolds, applied  in the manner directed in Jameel, provides a useful guide.

With this decision, the path was now paved for the Supreme Court to weigh in on the adoption of the responsible journalism defence for courts across Canada.

Grant v Torstar — Supreme Court of Canada

In December 2009, the Supreme Court delivered concurrent decisions in Grant v Torstar and Quan v Cusson. Both decisions involved the applicability of the responsible journalism defence, as introduced by the Ontario Court of Appeal. The Supreme Court analysed the defence at length in Grant, whereas its decision in Quan mainly applies the reasoning set forth in Grant. For this reason, special focus will be given to the Grant decision.

The facts of Grant involve statements made in the Toronto Star about businessman Peter Grant. In the late 1990s, Grant wanted to build a nine-hole golf course on a lakefront estate in Northern Ontario where his home and company’s executive offices were located. In order to build the course, he needed to purchase adjacent Crown land and get government approval from various levels. Local residents opposed the project over environmental concerns. At a public meeting about the project, local residents expressed their concern about the transparency of the process, pointing to the fact that Grant was a long-time supporter and financial contributor of the Ontario Progressive Conservative Party (the party in power at the time), as well as a personal friend of then Premier of Ontario, Mike Harris. One of the people at the meeting sent Star reporter Bill Schiller an email describing the sentiment of local cottagers. Schiller investigated the matter further, examining documents relating to the project, elections records about Grant’s connection to the Progressive Conservative party, and speaking to local residents. On several occasions, Schiller attempted to interview Grant about the issue, but his requests were denied. On 23 June 2001, the Toronto Star published Schiller’s article, headlined: ‘Cottagers teed off over golf course — Long-time Harris backer awaits nod on plan’. Included in the article was a statement by one of the cottagers, Lorrie Clark, who said, ‘everyone thinks it’s a done deal because of Grant’s influence — but most of all his Mike Harris ties’. Grant and his company, Grant Forest Products, sued Schiller, the Star and Clark.

At trial, the plaintiffs argued the article accused Grant of improperly using his influence to obtain government favours. The defendants, relying on Reynolds, argued qualified privilege should apply based on the concept of public interest responsible journalism. The trial judge said the defence would not apply in the circumstances because the story had a ‘very negative tone’, and the jury subsequently awarded the plaintiffs aggravated and punitive damages totalling nearly $1.5 million.

With the Ontario Court of Appeal’s judgment in Quan recognising a new defence of responsible journalism, the defendants appealed the jury verdict. Writing for the court, Feldman JA affirmed the new defence in Quan and held that this defence should have been left to the jury. Her Honour noted that the trial judge applied an excessively narrow conception of the public interest and that as a matter of law, the story was in the public interest. On the issue of responsibility relating to the new defence, Her Honour also noted that the trial judge should have given more weight to the reporter’s attempts to verify the allegations. Particular regard was had to the extensive research conducted by Schiller, and to the fact that he attempted on several occasions to interview Grant. Concluding the jury instructions were incorrect, the Court of Appeal allowed the appeal, set aside the verdict, and ordered a new trial.

Grant appealed the matter to the Supreme Court, asking for the jury verdict to be reinstated. The defendants cross-appealed, asking the court to apply the new defence and dismiss the action. The court took the opportunity to analyse the current law in Canada with respect to qualified privilege, and to consider whether the protection given to factual statements published in the public interest should be strengthened. After considering the evolution of qualified privilege, looking at the same chronology as did the Ontario Court of Appeal in Quan, the Supreme Court recognised that the threshold for qualified privilege remains high and the criteria required to establish it is unclear. As a result, the court decided to broaden the available defamation defences to public communicators reporting matters of fact. The decision was based on two notions: (1) that existing law was inconsistent with the principle of freedom of expression in the Charter, and (2) recent changes in other common law jurisdictions have afforded more protection to the press and Canada needed to follow suit.

Freedom of expression in the Charter

With regard to the first notion, McLachlin CJ (writing for the majority) focused on Canadian constitutional values, stating that ‘freedom of expression and respect for vigorous debate on matters of public interest have long been seen as fundamental to Canadian democracy’. In 1982, Canada enacted the Charter of Rights and Freedoms which, among other things, confirmed constitutional protection for free expression: ‘Everyone has . . . freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. Despite the Supreme Court recognising that an individual’s reputation is also protected by the Charter, the majority in Grant said that it is the duty of the court to take ‘a fresh look at the common law from time to time, and re-evaluate its consistency with evolving societal expectations through the lens of Charter values’. It can be inferred from this statement that the Supreme Court believed that there had been a shift in the values of Canadian society in the decade and a half since Hill, where the public placed a stronger value on the importance of free expression over the protection of reputation. However, McLachlin CJ expressly stated that Charter principles ‘do not provide a licence to damage another person’s reputation simply to fulfil one’s atavistic desire to express oneself’.

Approach of other jurisdictions

With regard to the second notion, the Supreme Court followed the path laid out by the Ontario Court of Appeal in Quan, recognising that other common law countries have developed rules that give greater scope to freedom of expression.

The court began its analysis of other jurisdictions by rejecting the approach of the United States Supreme Court in Sullivan. Briefly, the principle that emerged from Sullivan is that the First Amendment’s free speech guarantee means that an individual cannot recover in defamation unless they can prove ‘actual malice’. While this ratio applies to public officials, the Supreme Court of Canada noted that this approach has made it extremely difficult for a plaintiff to sue successfully for defamation. This approach clearly conflicted with the court’s desire to develop a law that continued to protect reputation.

After a short look at the United States’ position, the court considered the United Kingdom’s approach, with particular attention given to the Reynolds and Jameel decisions. This was followed by a brief look at Australia’s position under Lange, New Zealand’s position under Lange No 3, and South Africa’s position under Bogoshi. The conclusion of this analysis was that other common law jurisdictions, when faced with balancing free expression and the protection of reputation, are allowing publishers to escape liability if they can establish that they acted responsibly. The Supreme Court clearly agreed with this position.

Following the analysis of Charter values and the approach of other common law jurisdictions, the Supreme Court ventured to formulate the new defence. The first issue was whether it would be a new defence outright or an extension of qualified privilege. While the House of Lords intended Reynolds to be an extension of qualified privilege, the Supreme Court said the decision effectively created a new defence. With the introduction of the Reynolds factors, the conduct of the defendant was the dominant focus of the inquiry, whereas with qualified privilege, the dominant focus was the circumstances of the communication. This shift in focus meant that the Reynolds privilege is a ‘different jurisprudential creature from the traditional form of privilege from which it sprang’. Ultimately, it is not the occasion that is protected by the new defence, but the published material itself. The Supreme Court also thought it was necessary to separate the duties and interests of people who traditionally fall within the scope of qualified privilege (such as job references or police reports) from media publications. The reason for this distinction is because there is a difference in the reciprocal duty between the two groups. As a result, the court did not want to compromise or obscure the traditional framework of qualified privilege, opting instead to leave it intact.

In terms of naming the defence, the Supreme Court wanted to move away from the term ‘responsible journalism’, as those making public communications about matters of public interest are not necessarily journalists. By formulating the defence to cover bloggers and other online publishers, the defence became ‘available to anyone who publishes material of public interest in any medium’. Therefore, the new defence is referred to as ‘responsible communication on matters of public interest’.

Formulating the defence of responsible communication on matters of public interest

The substance of the new defence revolves around the two essential elements highlighted by Sharpe JA in Quan: public interest and responsibility. As a result, the Supreme Court formulated the test as follows: first, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, having regard to the relevant circumstances.

Was the publication on a matter of public interest?

Courts have always struggled with determining what is the public interest as a matter of law. One widely accepted definition comes from Lord Denning:

 Whenever a matter is such as to affect people at large, so that they may be  legitimately interested in, or concerned at, what is going on; or what may happen to  them or to others; then it is a matter of public interest on which everyone is entitled  to make fair comment.

Whether a matter is of public interest is for the presiding judge to decide, acting like a gatekeeper. This is analogous to a judge’s role in determining whether an occasion is subject to privilege. In making this determination, the judge is to consider the subject matter of the publication as whole, not scrutinise the defamatory statement in isolation. The Supreme Court specifically noted that public interest is not to be confined, as the public has a genuine stake in knowing about matters ranging from science, to the arts, to the environment, to morality. All that is necessary is that some segment of the public must have an interest in knowing about the matter published.

One issue the Supreme Court recognised with this approach is that it left a significant amount of interpretation open to the presiding judge. As a result, what is in the public interest could be narrowly or broadly construed. The only guidance the Supreme Court offered is that ‘care must be taken’.

As a sub-point to the public interest requirement, a majority of the court held that it is for the jury to decide whether the inclusion of a particular defamatory statement was necessary to communicating the matter of public interest. In Jameel, Lord Hoffman noted that this decision is a question of law for the judge, as did Abella J in her dissent in Grant. However, the majority noted that deciding whether the inclusion of the statement in question was justifiable involves a fact-based assessment, and consequently it is ‘intimately bound up in the overall determination of responsibility’.

Once it is determined by the presiding judge that the publication was a matter of public interest, and the jury decides the defamatory statement was necessary for the communication, the matter proceeds to the second arm of the defence.

Was publication of the defamatory communication responsible?

In order to satisfy the second arm, the Supreme Court made a list of factors to aid in determining whether the defamatory statement was responsibly made. For the most part, the factors closely resemble those set out in Reynolds. There are, however, some differences. Each factor will be briefly discussed below:

The seriousness of the allegation

The court recognised that the defamatory ‘sting’ of a statement has a wide range of implications, from nothing more than an irritant on the one hand, to a devastating blow to an individual’s career and reputation on the other. As a result, publications that include very serious defamatory statements, such as accusations of corruption or criminality, will demand more thorough efforts at verification than will statements of lesser implications. This factor was also included in Reynolds, where it was said that the more serious the charge, the more the public is misinformed and the individual harmed if the allegation is not true.

The public importance of the matter

Despite the first arm of the defence, where a judge determines if a matter is in the public interest, the jury may subsequently assess the degree of importance of the defamatory statement. The court noted that not all matters of public interest are of equal importance, illustrating this point by discussing how grave matters of national security will invoke different concerns from communications about everyday politics. The logic behind this factor is that the higher the public importance, the more likely the publication was responsible in the circumstances. Reynolds listed a similar factor that focused on the extent the subject matter is a matter of public concern.

The urgency of the matter

Considering the urgency of the matter is ultimately a question of timing. Because news is ‘often a perishable commodity’, the timeliness of a publication can be of critical importance. This is especially true when the matter is of significant public importance. The Supreme Court noted that this factor is not meant to unduly hinder the timely reporting of important news, nor is it meant to provide an excuse for irresponsible reporting when a publication is trying to get a ‘scoop’ on a story. As a result, the jury may consider whether the public’s need to know required the defendant to publish when it did. If it is found that a reasonable delay may have assisted the defendant in finding out the truth without compromising the story’s timeliness, this factor will obviously fall in favour of the plaintiff. Reynolds also included this factor.

The status and reliability of the source

This factor coincides with one of the fundamental principles of journalism: always consider the reliability of the source of the information. Here, the court said that the less trustworthy the source, the greater the need to use other sources to verify the allegations. In Reynolds, Lord Nicholls noted while discussing this same factor that some informants have an axe to grind or are being paid for their stories. The Supreme Court made reference to this point, saying that the fact a defendant’s source has an axe to grind does not necessarily deprive them of protection, provided other reasonable steps were taken.

The court also took the opportunity under this factor to discuss confidential sources. Every so often, a journalist must protect the identity of a source. It is often necessary in order to maintain public confidence in the profession as an independent, fourth estate, or avoid any legal or violent retribution. While the court recognised that publishing slurs from unidentified sources could be considered irresponsible, the fact that a publication relied on a confidential source will not necessarily strip them of the defence. It will ultimately depend on the circumstances.

Whether the plaintiff’s side of the story was sought and accurately reported

McLachlin CJ said this factor ‘speaks to the essential sense of fairness the defence is intended to promote’ and described it as the core Reynolds factor. Her Honour also noted that failure to provide the other side of the story to comment can, in some cases, heighten the risk of inaccuracy. However, the issue with this factor is that providing a subject with an opportunity to comment can sometimes lead to the subject purposely stalling, with the intention of making the story disappear. To address this issue, the court appears to be more concerned with whether the comment was sought and whether there was a reasonable opportunity to respond.

The court cautioned, ‘in most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond’. However, this provision has been criticized as being burdensome or even unworkable for ‘lay media’ who publish through informal means and do not have access to the same resources as professional journalists and media outlets.

Whether inclusion of the defamatory statement was justifiable

This factor does not expressly appear on the list of Reynolds factors, however it can certainly be implied. As previously discussed, the Supreme Court said it is for the jury to determine if the statement was necessary to communicating on a matter of public interest. In considering this particular factor, the jury is to give editorial decision-making a generous amount of deference.

Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth? (‘Reportage’)

As a general rule to defamation, repeating a libel attracts the same legal consequences as the originating statement. Here, the Supreme Court affirmed this rule, maintaining that one should not be able to freely publish a ‘scurrilous libel’ simply by attributing it to someone else. The court said this rule is especially important in the internet age, where defamatory material can spread with ease and at great speed. Nevertheless, the Supreme Court held that the repetition rule does not apply to fairly reported statements whose public interest lies in the fact they were made. This is called ‘reportage’.

The court laid out a sub-test, saying a publisher will incur no liability for re-publishing a defamatory statement, provided:

1) The report attributes the statement to a person;

2) The report indicates that its truth has not been proven;

3) The report sets out both sides of the dispute fairly; and

4) The report provides the context in which the statements were made.

If the jury is satisfied that the defamatory statement is reportage, it must still find its publication was reasonable in the circumstances. The application of this factor will be discussed further in the analysis of a hypothetical scenario. In Reynolds, reportage was not expressly listed as a factor for consideration. However, some post-Reynolds decisions have applied its factors in deciding matters involving defamation in reportage.

Other considerations

As with the Reynolds factors, the Grant factors are non-exhaustive and are meant to serve as a guide to establishing whether a communication was responsible. Ultimately, any relevant matter may be considered by the jury.

While the Grant factors are very similar to those in Reynolds, there are several differences. The Supreme Court did not include in its list:

• the steps taken to verify the information;

• the status of the information;

• whether the article contained the gist of the plaintiff’s side of the story;

• the timing of the publication; and

• the overall tone of the article.

For the most part, these factors can be interpreted into the Grant factors. However, the Supreme Court noted that the tone of the article may not always be relevant to responsibility. MacLachlin CJ said of this factor: ‘[t]he best investigative reporting often takes a trenchant or adversarial position on pressing issues of the day’.

As well, the court noted that malice should always be a relevant consideration, as a defendant who has acted with malice in publishing defamatory allegations has, by definition, not acted responsibly.

As previously stated, the presiding judge will decide whether the statement is a matter of public interest, and if shown, the jury will decide if the defence is established, having considered the relevant factors. It should be noted that Abella J of the Supreme Court concurred with the majority, however her Honour held that the defence is a highly complex legal determination with constitutional dimensions, and as a result, establishing the defence goes beyond the jury’s jurisdiction and ‘squarely into judicial territory’. This, however, was not the opinion of the majority of the court.

The application of the responsible communication defence in Australia

There are several key differences between the Australian approach to qualified privilege and the responsible communication defence. For example, both s 30 of the NUDL and the approach under Lange focus on reasonableness. Following the approach of the New Zealand courts, the Supreme Court of Canada rejected any requirement of reasonableness, instead focusing the availability of the defence on the responsibility of the publisher. The Supreme Court noted that the Australian test of reasonableness is far more stringent than a test of responsibility.

Another important difference is the role of the jury. One of the criticisms of s 30 of the NUDL is that the questions of whether the publisher acted reasonably is treated as a question of law to be decided by a judge, rather than a question of fact to be decided by a jury.179 Under the responsible communication defence, the jury assesses whether the communication was responsible.

It is also worth noting that the responsible communication defence is deeply rooted in Canadian Charter values — namely, the freedom of expression. Australia, on the other hand, does not have a national charter or bill of rights. The 1898 Constitutional Convention of Australia rejected a proposal to include an express guarantee of individual rights. Ninety years later, Australians rejected the proposal of including express rights into the federal Constitution in what was the greatest defeat of any referendum proposal since Federation. However, Victoria and the Australian Capital Territory have both enacted their own respective human rights legislation, both of which contain a freedom of expression provision. While an argument could be made that these jurisdictions may introduce the responsible communication defence at the state and territory level, this result is highly unlikely as it would defeat the entire purpose of having national uniform defamation legislation.

Ultimately, the responsible communication defence is significantly more media-friendly than qualified privilege. As discussed, the new defence is founded upon the English common law principles that have emerged over the past decade. When it comes to qualified privilege, the respective laws of England and Australia have very little in common. Australian courts have, on several occasions, rejected the implementation of a Reynolds-style privilege, despite calls from within the Australian legal community to further develop qualified privilege to better protect the publication of public interest news and commentary.

Nevertheless, the High Court left open the possibility of expanding qualified privilege, saying in Lange that the common law defence of qualified privilege could go ‘beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution’. With the introduction of s 30 of the NUDL, qualified privilege has certainly been expanded, at least in relation to the subject matter it protects. However, the burden of reasonableness remains.

In Rogers v Nationwide News, Gleeson CJ and Gummow J noted that reasonableness is meant to be considered by balancing the freedom of speech on the one hand, and the individual’s interest in protecting their reputation on the other. Their Honours went on to say that in terms of reasonableness, a defendant seeking to rely on statutory qualified privilege ‘will have to explain how the error came to be made, and why it could not reasonably have been avoided, bearing in mind the harm it was likely to cause’. These statements of law are very similar to those expressed by McLachlin CJ of the Canadian Supreme Court in Grant. It also appears that reasonableness and responsibility could be used interchangeably. Perhaps it would not be a major shift in law for a defence of responsible communication to exist in Australia after all. For example, in Hansen v Harder, the British Columbia Court of Appeal heard a defamation matter involving a student newspaper at Simon Fraser University and the financial and services coordinator of a student union. The newspaper published an article that inferred the respondent was guilty of fraud and misappropriation of monies from the student union. The Court of Appeal did not allow the appellants to rely on the responsible communication defence because they relied too heavily on an unreliable forensic report, were not sufficiently diligent in verifying their information, and did not diligently seek comment from the respondent. The court said the appellants did not act responsibly in publishing the information. Had the court assessed the same fact scenario with s 30 of the NUDL, it is very likely the appellants conduct would have failed the reasonableness test as well. Under s 30(3) of the NUDL, the court can take into account, among other things, the integrity of the sources relied upon, the steps taken to verify the information published, and whether a reasonable attempt was made to obtain a response.

Conclusion

Critics of the public interest responsible communication defence said it moves the focus of a libel action away from the plaintiff’s ability to prove the statements complained about were false, in addition to making libel actions more complex and costly by requiring an exhaustive analysis of the actions of the publisher. Nonetheless, the decision in Grant was heralded as ‘perhaps the most significant development in the case of Freedom of Expression vs Protection of Reputation in recent years’.

In a research paper published in 2004 by the Melbourne University Law Review, author Andrew Kenyon interviewed nearly 30 Australian defamation practitioners about the position of qualified privilege at that time. The general consensus from those interviewed was that the law in Australia should be reformed to a Reynolds-style privilege.

Kenyon’s research on qualified privilege ‘points towards a broader and stronger Australian defence — one that is neither limited to a narrow version of political communication, nor requires an onerous standard of reasonableness’. As previously mentioned, Australian courts have rejected the expansion of qualified privilege to a Reynolds-style privilege. But instead of expanding and tampering with qualified privilege, Australian common law could introduce a new defence outright, as did the Ontario Court of Appeal and Supreme Court of Canada.

The circumstances that lead to the introduction of the responsible communication defence in Canada are similar to the current circumstances in Australia. As noted by McLachlin CJ, prior to the introduction of the new defence, it was ‘uncertain when, if ever, a media outlet can avail itself of the defence of qualified privilege’. As well, Australia and Canada have very similar common law traditions and the two nations share very similar social values. While not constitutionally entrenched, the High Court has recognised that the freedom of expression and the freedom of the press are important values to Australian law and society. Both freedoms are essential to the free exchange of ideas that govern an open society.

Even with the statutory reform of the NUDL, potential impediments to free expression and hurdles to investigative journalism remain. It is implicit in their duty that the courts will, from time to time, take a fresh look at the common law and re-evaluate its consistency with evolving societal values. In the age of the internet, traditional journalism has been flipped on its head. The rigidity of qualified privilege and its focus on reasonableness conflicts with the exchange of ideas and information that has proliferated online since the late 1990s. The responsible communication defence is plainly intended to shift the law of defamation away from its constricting reputation-protection stance to freer and more open discussion on matters of public interest. As noted by the Supreme Court of Canada in WIC Radio, freewheeling debate on matters of public interest is to be encouraged, and not thwarted by overly solicitous regard for personal reputation.

It should also be noted that protection of reputation is also an important value to Australian society. Nevertheless, as noted by Mason CJ, Gaudron and Toohey JJ in Theophanous:

 The common law defences which protect the reputation of persons who are the  subject of defamatory publications do so at the price of significantly inhibiting free  communication. To that extent, the balance is tilted too far against free  communication and the need to protect the efficacious working of representative  democracy and government in favour of the protection of individual reputation.

Despite the evolutions in law since Theophanous, the ‘chill’ of defamation suits that inhibit media outlets continue to exist. It is for this reason that Australian society, motivated by a freer exchange of ideas, may benefit by adopting the defence of responsible communication on matters of public interest. This would serve to bring clarity to what can and cannot be reported, as well as protect publishers who are reporting a matter of public interest but may not be afforded the protection of either the current common law or statutory branch of qualified privilege. Ultimately, credence would be given to Cockburn CJ’s 150-year-old statement that ‘a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know’.


Author:

Jordan Lester

Defamation Contacts:

Jordan Lester
Thunder Bay, Lawyer
Phone: 807.625.7135
Email: cheadles%23com|lester

Footnotes:

(1) [2001] 2 AC 127; [1999] 4 All ER 609.

(2) (1817) 2 Stark 297; 171 ER 652.

(3) Ibid 301, 653.

(4) Cox v Feeney (1863) 4 F & F 13, 19; 176 ER 445, 448 (approving an earlier statement by Lord Tenterden CJ).

(5) Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524, 530.

(6) Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 175.

(7) Mark Pearson and Mark Polden, The Journalist’s Guide to Media Law (Allen & Unwin, 4th ed, 2011) 220.

(8) Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 133.

(9) Ibid.

(10) (1997) 189 CLR 520 (‘Lange’).

(11) Ibid 566.

(12) For a further discussion, see Andrew Kenyon, ‘Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice’ (2004) 28 Melbourne University Law Review 406.

(13) Roberts v Bass (2002) 212 CLR 1.

(14) See Civil Laws (Wrongs) Act 2002 (ACT) Ch 9; Defamation Act 2005 (NSW); Defamation Act 2005 (NT); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA).

(15) Des Butler and Sharon Rodrick, Australian Media Law (Law Book Co, 3rd ed, 2007) 28.

(16) Defamation Act 2005 (NSW) s 30; Defamation Act 2005 (SA) s 28; Defamation Act 2005 (NT) s 27; Civil Laws (Wrongs) Act 2002 (ACT) s 139A.

(17) [2001] 2 AC 127; [1999] 4 All ER 609 (‘Reynolds’).

(18) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 133; [1999] 4 All ER 609, 613.

(19) Ibid.

(20) Grant v Torstar Corp [2009] 3 SCR 640, [35].

(21) Specifically the freedom of expression in Canada Act 1982 (UK) c 11, Sch B Pt I, s 2(b) (‘Canadian Charter of Rights and Freedoms’), and with respect to the protection of reputation discussed at length in Hill v Church of Scientology of Toronto [1995] 2 SCR 1130.

(22) [2009] 3 SCR 640.

(23) Ibid [85].

(24) Dean Jobb, The Responsible Communication Defence: What’s in it for Journalists? (23 December 2009) J-Source.ca <http://j-source.ca/ article/responsible-communicationdefence- whats-it-journalists>.

(25) See Defamation Act 2005 (SA) s 28; Defamation Act 2005 (NT) s 27; Civil Laws (Wrongs) Act 2002 (ACT) s 139A.

(26) Butler and Rodrick, above n 15, 71.

(27) Ibid.

(28) Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510.

(29) Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.

(30) Kenyon, above n 12, 415.

(31) (1997) 189 CLR 520.

(32) Ibid 571.

(33) Kenyon, above n 12, 416.

(34) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 573.

(35) Butler and Rodrick, above n 15, 84.

(36) Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (24 December 2002) [1169]; Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 (1 August 2008) [758].

(37) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 570, 572; Atkas v Westpac Banking Corporation (2010) 241 CLR 79, 87.

(38) Megna v Marshall [2010] NSWSC 686 (25 June 2010) [50].

(39) (2010) 241 CLR 79.

(40) Ibid 94.

(41) Ibid 100, 111.

(42) See Defamation Act 2005 (SA) s 28; Defamation Act 2005 (NT) s 27; Civil Laws (Wrongs) Act 2002 (ACT) s 139A.

(43) Pearson and Polden, above n 7, 227.

(44) Ibid.

(45) See s 30(3) of the national uniform defamation legislation; Defamation Act 2005 (SA) s 28(3); Defamation Act 2005 (NT) s 27(3); Civil Laws (Wrongs) Act 2002 (ACT) s 139A(3).

(46) Commonwealth, Attorney General’s Department, Revised Outline of a Possible National Defamation Law (July 2004) 21–23.

(47) Roberts v Bass (2002) 212 CLR 1; Section 30(4) of the national uniform defamation legislation; Defamation Act 2005 (SA) s 28(4); Defamation Act 2005 (NT) s 27(4); Civil Laws (Wrongs) Act 2002 (ACT) s 139A(4).

(48) Roberts v Bass (2002) 212 CLR 1, 32.

(49) Ibid 31.

(50) Butler and Rodrick, above n 15, 85.

(51) Ibid 646.

(52) Ibid 654 (Lord Hope).

(53) Ibid 619 (Lord Nicholls).

(54) Ibid 625.

(55) Ibid 626.

(56) Ibid.

(57) David Hooper, ‘The Importance of the Jameel Case’ (2007) 18 Entertainment Law Review 62, 62. See also Iam Cram, ‘Political Expression, Qualified Privilege and Investigative Journalism — An Analysis of Developments in English Defamation Law Post Reynolds v Times Newspapers’ (2005) 11 Canterbury Law Review 143.

(58) [2007] 1 AC 359 (‘Jameel’).

(59) Ibid [33] (Lord Bingham).

(60) Ibid [4] (Lord Bingham).

(61) Ibid [9].

(62) Ibid [8].

(63) Ibid [56]. See also Bonnick v Morris [2003] 1 AC 300, [24] (Lord Nicholls).

(64) Ibid [51].

(65) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 574.

(66) Bonnick v Morris [2003] 1 AC 300, [23].

(67) (2007) 286 DLR (4th) 196 (‘Quan’).

(68) Ibid [24].

(69) Ibid [25].

(70) Ibid [26].

(71) Quan v Cusson [2009] SCC 62, [24].

(72) Ibid [22].

(73) Cusson v Quan (2007) 286 DLR (4th) 196, [150].

(74) Ibid [149].

(75) Quan v Cusson [2009] SCC 62, [25].

(76) [1952] 1 SCR 275.

(77) Ibid 287.

(78) [1969] SCR 277.

(79) Ibid 279.

(80) Ibid 281.

(81) Ibid 284.

(82) Ibid 285; Douglas v Tucker [1952] 1 SCR 275, 287.

(83) Jones v Bennett [1969] SCR 277, 284.

(84) Stopforth v Goyer (1979) 23 OR (2d) 696 (CA).

(85) Ibid 699.

(86) See Parlett v Robinson (1986) 30 DLR (4th) 247 (BCCA); Grenier v Southam Inc [1997] OJ No 2193; Young v Toronto Star Newspapers Ltd (2003) 66 OR (3d) 170 (SCJ).

(87) [1995] 2 SCR 1130.

(88) Ibid [51].

(89) Ibid [95] (Cory J).

(90) Ibid [100].

(91) Canadian Charter of Rights and Freedoms, s 2(b).

(92) Hill v Church of Scientology of Toronto [1995] 2 SCR 1130, [120].

(93) Ibid [106].

(94) Cusson v Quan (2007) 286 DLR (4th) 196, [122].

(95) Ibid [137].

(96) Ibid [141].

(97) Ibid [143].

(98) Grant v Torstar Corp [2009] 3 SCR 640, [17].

(99) Ibid [18].

(100) Ibid [19].

(101) Ibid [20].

(102) Grant v Torstar Corporation [2008] ONCA 796.

(103) Ibid [106].

(104) Ibid [63].

(105) Ibid [64].

(106) Ibid [107].

(107) Grant v Torstar Corp [2009] 3 SCR 640, [25].

(108) Ibid [26].

(109) Ibid [37].

(110) Ibid [39]–[40].

(111) Ibid [42].

(112) Canadian Charter of Rights and Freedoms, s 2(b).

(113) Hill v Church of Scientology of Toronto [1995] 2 SCR 1130.

(114) Grant v Torstar Corp [2009] 3 SCR 640, [46].

(115) Ibid [51].

(116) Ibid [66].

(117) New York Times Co v Sullivan, 376 US 254 (1964).

(118) Curtis Publishing Co v Butts, 388 US 130 (1967).

(119) Grant v Torstar Corp [2009] 3 SCR 640, [67].

(120) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

(121) Lange v Atkinson [2000] 3 NZLR 385.

(122) National Media Ltd v Bogoshi [1998] 4 SA 1196.

(123) Grant v Torstar Corp [2009] 3 SCR 640, [85].

(124) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 204; [1999] 4 All ER 609, 625.

(125) Grant v Torstar Corp [2009] 3 SCR 640, [90].

(126) Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783; [2002] 1 All ER 652, [35] (Lord Phillips).

(127) Grant v Torstar Corp [2009] 3 SCR 640, [92].

(128) Ibid [93].

(129) Ibid [95].

(130) Ibid [96].

(131) Jameel v Wall Street Journal Europe [2007] 1 AC 359, [54].

(132) Grant v Torstar Corp [2009] 3 SCR 640, [98]; Cusson v Quan (2007) 286 DLR (4th) 196, [143].

(133) Grant v Torstar Corp [2009] 3 SCR 640, [98].

(134) London Artists Ltd v Littler [1969] 2 QB 375, 391; affirmed by the Supreme Court of Canada in Grant v Torstar Corp [2009] 3 SCR 640, [104], and by the Australian High Court in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, 193.

(135) Grant v Torstar Corp [2009] 3 SCR 640, [100].

(136) Ibid [101].

(137) Ibid [106].

(138) Ibid [107].

(139) Ibid [108].

(140) Jameel v Wall Street Journal Europe [2007] 1 AC 359, [51].

(141) Grant v Torstar Corp [2009] 3 SCR 640, [142].

(142) Ibid [109].

(143) Ibid [111].

(144) Ibid.

(145) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205; [1999] All ER 609, 626.

(146) Grant v Torstar Corp [2009] 3 SCR 640, at [112].

(147) Ibid.

(148) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205; [1999] All ER 609, 626.

(149) Ibid.

(150) Grant v Torstar Corp [2009] 3 SCR 640, [113].

(151) Ibid.

(152) Ibid.

(153) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205; [1999] All ER 609, 626.

(154) Grant v Torstar Corp [2009] 3 SCR 640, [114].

(155) Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205; [1999] All ER 609, 626.

(156) Grant v Torstar Corp [2009] 3 SCR 640, [114].

(157) In 1790, statesman and philosopher Edmund Burke is said to have pointed to the press gallery in parliament and stated: ‘There are three estates in Parliament but in the reporter’s gallery yonder sits a fourth estate more important far than they all’; Pearson and Polden, above n 7, 28; Louis Edward Ingelhart, Press Freedoms: A Descriptive Calendar of Concepts, Interpretations, Events, and Court Actions from 4000 BC to the Present (Greenwood Press, 1987) 143.

(158) Grant v Torstar Corp [2009] 3 SCR 640, [115].

(159) Ibid [116].

(160) Ibid.

(161) Cram, above n 58.

(162) Grant v Torstar Corp [2009] 3 SCR 640, [116].

(163) Keri Gammon, DavidWotherspoon and Christian Leblanc, ‘Grant v Torstar: The Right to be (Responsible and) Wrong’ (2010) 10(11) Internet and E-Commerce Law in Canada 97, 100.

(164) Grant v Torstar Corp [2009] 3 SCR 640, [118].

(165) Truth (NZ) Ltd v Holloway [1960] 1 WLR 997, 1001.

(166) Grant v Torstar Corp [2009] 3 SCR 640, [119].

(167) Ibid.

(168) Ibid.

(169) Ibid [120].

(170) Al-Fagih v HH Saudi Research Marketing (UK) [2001] EWCA Civ 1634. For further analysis on the doctrine of reportage and the Reynolds decision, see Jason Bosland, ‘Republication of Defamation Under the Doctrine of Reportage — The Evolution of Qualified Privilege in England and Wales’ (2011) 31(1) Oxford Journal of Legal Studies 89.

(171) Grant v Torstar Corp [2009] 3 SCR 640, [123].

(172) Ibid.

(173) Ibid.

(174) Ibid [125].

(175) Ibid [145].

(176) Lange v Atkinson [2000] 3 NZLR 385.

(177) Grant v Torstar Corp [2009] 3 SCR 640, [81].

(178) Ibid [79].

(179) Pearson and Polden, above n 7, 228.

(180) Grant v Torstar Corp [2009] 3 SCR 640, [130].

(181) Grant v Torstar Corp [2009] 3 SCR 640, [39].

(182) Kruger v The Commonwealth (1997) 190 CLR 1, 61 (Dawson and HcHugh JJ).

(183) Kenneth J Keith, ‘The New Zealand Bill of Rights Experience: Lessons For Australia’ (2003) 9(1) Australian Journal of Human Rights 8.

(184) Human Rights Act 2004 (ACT) s 16(2); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15.

(185) John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373, 378; Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 (1 August 2008) [758].

(186) Kenyon, above n 12, 407.

(187) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 571.

(188) Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327.

(189) Ibid 340.

(190) Ibid.

(191) Grant v Torstar Corp [2009] 3 SCR 640, [101].

(192) Hansen v Harder (2010) BCCA 482.

(193) Richard Dearden and Wendy Wagner, ‘Canadian Libel Law Enters the 21st Century: The Public Interest Responsible Communication Defence’ (2011) 41 Ottawa Law Review 351, 373.

(194) Gammon, Wotherspoon and Leblanc, above n 164, 97.

(195) Kenyon, above n 12.

(196) Ibid 436.

(197) Grant v Torstar Corp [2009] 3 SCR 640, [37].

(198) Davis v Commonwealth (1988) 166 CLR 79; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

(199) R v Keegstra [1990] 3 SCR 697, 803.

(200) Mark Pearson, ‘A Review of Australia’s Defamation Reforms After a Year of Operation’ (2007) Bond University: Humanities and Social Sciences Papers <http://epublications. bond.edu.au/hss_pubs/238>.

(201) Grant v Torstar Corp [2009] 3 SCR 640, [46]. See, eg, R v L (1991) 174 CLR 379.

(202) Cusson v Quan (2007) 286 DLR (4th) 196, [143].

(203) WIC Radio Ltd v Simpson [2008] 2 SCR 420, [2].

(204) Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 131.

(205) Ibid 133.

(206) Cox v Feeny (1863) 4 F & F 13, 19; 176 ER 445 at 448 (approving an earlier statement by Lord Tenterden CJ).