Supreme Court: Tests for Responsible Communication (3) ~ The Source
By Brian Madigan LL.B.
The Supreme Court of Canada recently dealt with the matter of defamation. The Court decided that there should be a new defence to such an action based in libel and slander, and that is : "public interest responsible communication".
After dealing with the issue of public and private, the Court has come up with eight (8) tests for responsible communication. These rules apply whether you are the editor of a national newspaper chain or an amateur blogger sending your opinions into cyberspace.
The Court poses the following question:
Was Publication of the Defamatory Communication Responsible?
The Court offered some important guidelines to assist in the determination in Grant and Torstar. Reproduced below is criteria, comments and guidelines drawn from the Court's Judgment, "word for word", without commetary. However, the headnote shown in italics in each point, is mine. They do not appear in Judgment. They are simply there to assist your review and analysis of the decision.
"One of the relevant factors that may aid in determining whether a defamatory communication on a matter of public interest was responsibly made is:
The Status and Reliability of the Source
· Trustworthiness. Some sources of information are more worthy of belief than others.
· Verification. The less trustworthy the source, the greater the need to use other sources to verify the allegations.
· Documents as a Source. This applies as much to documentary sources as to people; for example, an "interim progress report" of an internal inquiry has been found to be an insufficiently authoritative source...
· No Exemption for Repitition. Consistent with the logic of the repetition rule, the fact that someone has already published a defamatory statement does not give another person licence to repeat it.
· Ease of Repitition No Excuse. As already explained, this principle is especially vital when defamatory statements can be reproduced electronically with the speed of a few keystrokes.
· Initiator's Motivation Irrelevant. At the same time, the fact that the defendant's source had an axe to grind does not necessarily deprive the defendant of protection, provided other reasonable steps were taken.
· Confidential Source. It may be responsible to rely on confidential sources, depending on the circumstances; a defendant may properly be unwilling or unable to reveal a source in order to advance the defence.
· Undue Reliance Risky. On the other hand, it is not difficult to see how publishing slurs from unidentified "sources" could, depending on the circumstances, be irresponsible.
COMMENT:
The source of information is an important ingredient. The more reliable the source, the more likely the defence can be proved. The less reliable the source may be, the the greater the need to undertake a dilligent verification of the facts. While confidential sources are somewhat helpful, as in the "whistleblower" circumstance, others who wish to remain confidential are simply unreliable.
The Court points out clearly, that is is no special status here for bloggers and the internet. The obligation is the same. Verify and checkn the source, or proceed at your own peril. The mere fact that the internet moves quickly is not a sufficient (as in legal) excuse.
That was the third test. There are seven (7) others.
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com
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