truth, libel and the supreme court of canada

 Note: this is a piece I wrote and published on can.politics in Dec 2009, after the Supreme Court of Canada redefined a journalist's responsibility toward libel....an older post but worth while repeating here ...
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One could easily believe that the SCC had clear and specific reasons for inventing new law from whole cloth when it created the “responsible communication” defense. You could believe it, but you would be wrong.

Aside from wrapping their decision in constitutional motherhood statements, that the Court needed to protect Canadians’ right to freedom of expression and Big Media from scurrilous robber barons using anti-defamation laws at every turn, the Court provided no solid reasoning for their decision. That is, the Court provided no reasoning to buttress its assumption that such rights were undermined by requiring the media to prove the truth of published statements and facts in the first place.

The Court’s assumption is that the previous law undermined freedom of the press and freedom of expression through libel chill – that the unspoken threat of a legal action is, by itself, enough to hamper the free flow of information in a democratic society. According to the Court, “(f)ear of being sued for libel may prevent the publication of information about matters of public interest. The public may never learn the full truth on the matter at hand.” In addition, the media’s requirement to have to prove facts in Court long after publication was considered a burden on freedom of the press. “Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published.”

Libel chill certainly exists but how significantly does it impede the free flow of information in Canada? To what degree does it prevent journalists from publishing and broadcasting news?

The Court expressed no doubt. “It is simply beyond debate that the limited defences available to press-related defendants may have the effect of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth.” In other words, libel chill is a given and regardless of it's true affect, it's existence is enough to undermine democracy.

The Court's assurances aside, I doubt that libel chill has ever a significant barrier to publication under the previous legal standard. And not even the Supreme Court can prove when a story or certain facts don't run because of the threat of libel. Given that two separate articles in two separate newspapers gave rise to this case – one published despite the outright threat of legal action by the subject of the story – strongly suggests that the Court and Big Media have overstated the effect of libel chill in Canada.

The truth defense still exists as a matter of common law, but it is a higher standard that comes into play if and only if the lower standard of responsible communication, fails. And it's inconceivable that this new defense will ever fail given how flexible and expandable the Court has made it.

What the Court fails to say is just why truth no longer matters with regards to the defense of libel? The truth defense is a higher standard but not an impossible nor insurmountable one. In fact, the legal requirement to prove the truth of published statements and facts acts as an important check on the power of the media and the Court had an obligation to clearly demonstrate that the higher standard was a detriment to Canadian democracy.

The Court mentions the search for truth a number times and perhaps most poignantly when it wrote that “(f)reedom of expression… is essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization.” But the new law no longer requires the truth of statements and facts to be determined before information is published (and in fact, the Court never did require it).. In other words, the veracity of the information that is published or broadcast is no longer central to the defense of libel. What matters is that the publisher or broadcaster met the appropriate – and highly flexible - procedural requirements for responsible communication, an expandable checklist that the Court has created. Thus we are faced with the paradox that the search for truth can begin with a lie, reputations be dammed.

The secondary motivation for the Court’s decision was not constitutional. Instead, the Court sought to harmonize Canadian libel law with in other states, notably the United Kingdom, Australia, New Zealand and South Africa. According to the Court, “(a) consideration of the jurisprudence of other common law democracies favours replacing the current Canadian law…” This belies the Court’s earlier claim that it was changing libel laws based on evolution of Canadian values in the Charter era. Canadian courts regularly use precedents set in other jurisdictions but this is qualitatively different; the court is re-shaping Canadian law to parallel changes in other democratic states without reference to actual changes Canadian values or needs.

Finally, there is an element of class consciousness in the Court’s decision. The Court writes that anti-defamation laws “should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society.” There is a double-irony in the Court’s reasoning. First, one of the cases that brought the issue to the Supreme Court involved a former police constable turned dog handler, hardly a man of wealth and privilege. Second, a key reason why individuals do not pursue libel suits more frequently is the prohibitive cost of legal action. In other words, it may seem that libel suits are the purview of the rich and powerful but that’s only because the rest of us can’t afford them and are therefore forced to suffer the slings and arrows of media misrepresentation.