Journalists Shouldn't Rely On New Defamation Defence

Previously published in The Lawyers Weekly, March

21, 2008.

Defamation law, with its absolute liability, reverse onuses

and presumed damages, has historically proven stubbornly

resistant to change. However, at the end of 2007, the Ontario

Court of Appeal released a decision that changed the landscape

of defamation law for media in Ontario by recognizing a

"public interest responsible journalism" defence.

Whatever its practical impact may be, the decision

represents a significant departure from traditional common law

thinking on defamation law. Instead of the court examining the

effect of the statement, its truthfulness or the duties of the

person making it, the public interest responsible journalism

defence requires the court to focus on the conduct of the

defendant before publishing the statement. The defence gives

the media the right to be wrong, at least sometimes.

Although it is a much narrower defence than the media was

hoping for, it clearly represents an attempt to find middle

ground between giving the media a licence to defame and the

strict liability that has plagued modern defamation law.

However, the U.K.'s adoption of this defence, while raising

high hopes, has had little practical impact on the way libel

lawsuits are decided in that jurisdiction. Its effects in

Ontario remain to be seen.

In Cusson v. Quan, [2007] O.J. No. 4348, Danno

Cusson, an OPP constable, went to New York City on his own

initiative to participate in the rescue operations following

the attacks of Sept. 11, 2001. At the time, Cusson was

portrayed in the media as a hero for his rescue efforts.

However, a major local newspaper later published three articles

about him, and some of his rescue efforts, in a more negative

light.

Cusson brought a libel action against the newspaper and the

authors of the articles. At trial, the defendants raised

several defences, including qualified privilege, which had been

the area of defamation law that was getting the most attention

as a potential source of liberalization. In this

instance, it failed.

The trial judge rejected the defence with respect to two of

the three articles, finding that no privilege could apply to

those articles (but found that qualified privilege did apply to

the third article because it reported on possible disciplinary

charges).

On appeal, the appellants argued that the trial judge erred

in rejecting the defence of qualified privilege for the two

articles, but that, in the alternative, the Court of...